T/^ 


4& 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 


ESTATES,  FUTURE  INTERESTS 

AND  ILLEGAL  CONDITIONS 

AND  RESTRAINTS 

IN  ILLINOIS 

with 

An    Histojtcal  Introduction   and  an   Exposition 
of  the  Principles  of  Interpretation  nf  Writ- 
ings— More  Especially  Wills 


BY 

ALBERT  M.  KALES 

of  the  Chicago  Bar 


CHICAGO 

CALLAGHAN  AND  COMPANY 

1920 


Copyright 

1920 

BY 

ALBERT 

MARTIN  KALES 

T 

K 

e 

DEDICATED  TO   THE   MEMORY 
OF 

JOHN   CHTPMAN  GRAY 

"He  Was  the  Better  Teacher  for  Ijeing  ix  Active 
Practice;  He  Was  the  Better  Lawyer  from  the  Learning 
Which  Came  from  Teaching  Law." 


5&533S 


"It  is  a  great  mistake  to  be  frightened  by  the  ever  increasing  num- 
ber of  reports.  The  reports  of  a  given  jurisdiction  in  the  course  of  « 
generation  take  up  pretty  much  the  whole  body  of  the  law,  and  restate 
it  from  the  present  point  of  view.  We  could  reconstruct  the  corpus  from 
them  if  all  that  went  before  were  burned. ' ' — Mr.  Justice  Holmes  in  an 
address  entitled  "The  Path  of  the  Law,"  10  Harvard  Law  Beview, 
457,  458. 


PREFACE 


The  distinctions  wliicli  must  be  taken  in  determining  the 
legal  attributes  of  Estates  and  Future  Interests  in  the  modern 
law  are  best  appreciated  and  understood  by  considering  their 
origin  in  the  feudal  land  law  and  their  development  after  the 
Statutes  of  Uses  and  Wills  of  Henry  Vlll.  Some  historical  and 
introductory  matter  cannot,  therefore,  be  avoided.  It  is,  how- 
ever, more  advantageous  to  deal  with  the  historical  aspect  of 
the  subject  by  itself  than  to  attempt  to  mingle  with  it  a  de- 
tailed analysis  and  exposition  of  the  modern  law.  This  volume, 
accordingly,  commences  with  an  historical  introduction  to  the 
law  of  Estates  and  Future  Interests. 

Any  reasonably  complete  exposition  of  the  modern  law  of 
Estates  and  Future  Interests  will  be  found  to  involve  a  great 
many  questions  on  the  construction  of  wills  and  settlements  int€7- 
vivos.  These  cannot  be  handled  satisfactorily  without  first  de- 
termining the  general  principles  of  interpretation  applicable  to 
unilateral  writings.  The  second  book  of  the  present  work, 
therefore,  deals  with  the  law  relating  to  the  interpretation  of 
writings — more  especially'  wills. 

Then  follows  the  main  treatise  on  Estates  and  Future  In- 
terests. The  former  subject  is  new.  The  latter  is  a  rewriting 
and  enlargement  of  the  author  s  earlier  work  on  Future  In- 
terests, published  in  1905.  All  the  chapters  have  been  enlarged 
and  supplemented.  The  most  considerable  revision  is  in  the 
chapter  on  Remainders.  This  has  been  entirely  rewritten  and 
many  new  topics  added.  The  writer  came  to  regard  that 
chapter  of  the  former  work  as  quite  inadequate.  On  the 
subjects  of  Estates  and  Future  Interests  all  the  cases  decided 
by  the  Illinois  Supreme  Court  and  appearing  in  its  reports  up 
to  and  including  the  287th  volume,  have  been  dealt  with.  A 
number  of  the  author's  law  review  articles,  written  originally 
with  a  view  to  the  revision  of  the  former  work  on  Future  In- 
terests, have  been  incorporated  into  the  text.^  This  will  account 
for  the  fact  that  on  some  subjects  the  citation  of  eases  is  very 
complete  and  from  many  common  law  jurisdictions.     On  many 

1  Pot  a  full  list  of  these,  see  post, 
p.  liv. 

T 


vi  PREFACE 

Other  special  problems  leading  English  and  American  author- 
ities have  been  used,  especially  those  collected  in  the  writer's 
Case  Book  on  Future  Interests.-  It  is  possible  that  where  a 
belief  in  expositions  of  the  "general  common  law"  still  pre- 
vails, it  mijiht  be  thought  that  the  present  work  had  some 
ciaim  to  being  a  treatise  on  the  general  common  law  of  Es- 
tates and  Future  Interests.  Always,  however,  in  the  present 
work,  as  in  the  former,  the  object  in  the  use  of  materials  from 
many  jurisdictions  has  been  to  make  clear  the  present  state 
of  the  law  in  Illinois. 

The  writer's  work  on  Future  Interests  published  in  1905 
was  undertaken  for  three  reasons.  First:  Excellent  as  was  the 
course  on  future  interests,  given  by  Professor  Gray  at  the 
Harvard  Law  School,  it  was  quite  inadequate  to  prepare  the 
writer  to  handle  litigation  in  Illinois  relating  to  the  law  of 
this  subject  until  he  had  read,  classified  and  arranged  all  the 
Illinois  cases  in  regard  to  it,  so  that  he  knew  at  first  hand  what 
the  Supreme  Court  of  this  state  had  been  doing  and  where  it 
stood.'^  Second:  The  writer  was  then  teaching  the  subject  of  fu- 
ture interests  and  believed  that  a  teacher  of  law  should  practice, 
at  least  in  the  courts  of  appellate  jurisdiction  and  in  cases 
involving  the  law  on  the  subjects  which  he  taught,  and  that 
there  was  no  possibility  of  doing  this  unless  he  attempted  to 
master  the  local  law  and  submitted  the  results  of  his  efforts 
to  the  consideration  of  lawyers  and  judges.^  Third:  It  had  be- 
gun to  dawn  upon  the  writer  that  so  long  as  the  administration 
of  justice  was  left  to  each  state  to  the  extent  that  it  had  been 
and  now  is,  it  was  vastly  important  that  law  teachers  and 
practitioners  should  write  about  the  local  law  and  should  criti- 
cize and  analyze  the  decisions  of  a  single  jurisdiction  on  all 
important  subjects,  and  that  in  time  some  law  schools  should 
teach  the  local  law  of  the  jurisdiction  Avhere  they  W'ere  located. 

In  the  fifteen  years  which  have  elapsed  since  Future  In- 
terests was  published,  each  of  these  reasons  has  been  found  to 
be  not  only  sound  but  of  constantly  increasing  force. 

2  Cases  marked  with  an  asterisk  in  in  the  Evolution  of  the  Case  Book," 
the  Table  of  Cases  are  reprinted  by  the  same  author,  4  111.  Law  Kev. 
in  the  autlior's  Cases  on  Future  In-  11.  "An  Unsolicited  Report  on  Le- 
terests.  gal  Education,"  by  the  same  author, 

3  "The  Next  Step  in  the  Evolu-  18  Columbia  Law  Rev.  21. 

tion  of  the  Case  Book, ' '  by  Albert  •> ' '  Should  the  Law  Teacher  Prae- 

M.   Kales,   21    Harv.    Law   Rev.    92.       tice  Law?"  25  Harv.  Law  Rev.  253. 
"A  Further  Word  on  the  Next  Step 


PREFACE  Vll 

The  inadequacy  of  law  school  courses — given  today  about  as 
they  were  outlined  (if  not  indeed  perfected)  by  the  great 
teachers  of  the  Harvard  Law  School  from  the  '80s  to  the  1900s 
— to  enable  the  student  to  practice  in  a  given  jurisdiction  like 
Illinois,  has  become  each  year  more  apparent.  While  teaching 
law  and  having  little,  if  any,  practice,  it  took  the  writer  three 
years  to  complete  the  earlier  work.  William  B.  Hale,  who 
wrote  a  book  of  the  same  sort  on  the  Hlinois  law  of  corpo- 
rations, spent  at  least  the  same  amount  of  time  spread  over 
a  greater  number  of  years.  Today  similar  efforts  with  other 
leading  subjects  of  the  law  are  no  less  difficult  of  accomplish- 
ment. The  gulf  between  the  law  which  the  law  schools  teach 
and  the  local  law,  which  the  practitioner  needs  to  know  to  use 
and  to  train  his  legal  thinking  on,  grows  each  year  a  little  wider 
and  more  impossible  for  the  beginner  in  practice  to  bridge, 
without  having  had  the  aid  of  able  scholars  and  teachers  who  are 
also  masters  of  the  local  law. 

It  has  always  been  apparent  to  the  writer  that  practitioners 
(as  Ave  know  them  in  this  country)  should  not  attempt  to  teach 
law.  It  has  been  equally  apparent  that  the  law  teacher  to  be  a 
first-class  teacher  must  have  (not  have  had)  some  practice.  Not, 
however,  a  practice  as  a  client  caretaker,  or  even  as  a  success- 
ful advocate  engaged  constantly  in  long  and  difficult  trials.  Ex- 
cluding these  lines  of  practice  there  is  still  room  for  the  law 
teacher  to  engage  in  some  activity  at  the  bar.  The  work  of  the 
law  teacher  is  closer  to  that  of  our  judges  in  courts  of  appeal 
than  is  the  work  of  the  average  lawyer.  The  teacher  is  accus- 
tomed to  classify,  arrange,  analyze  and  criticize  the  opinions 
of  courts  of  last  resort.  That  brings  his  thinking  very  close  to 
the  thinking  of  the  judges  who  are  writing  those  opinions.  The 
law  teacher  has  a  fair  opportunity  to  practice  before  courts  of 
appeal,  particularly  in  cases  involving  such  branches  of  the  law 
as  he  makes  his  special  field  in  teaching.  In  this  line  of  prac- 
tice his  position  should  be  that  of  an  advocate  employed  by  other 
lawyers.  The  sine  qua  non  for  a  practice  of  this  kind  is  that 
the  teacher  should  not  only  be  a  master  of  the  local  law^  in 
some  important  subjects  but  should  demonstrate  his  mastery 
to  judges  and  lawyers  by  producing  a  text-book  on  the  local 
law  by  which  he  may  be  judged.  Such  a  practice  would  not 
only  produce  a  substantial  income  and  confer  a  standing  at 
the  bar  among  lawyers  and  judges,  but  it  would  make  the  dif- 
ference between  a  somewhat  colorless  academic  teacher  and  one 


Vlll  PREFACE 

who  knew  the  problems  that  were  vital  and  could  assume  to 
speak  with  some  authority.  Contests  with  able  counsel  and  the 
effort  to  persuade  judges  of  ability  and  long  experience  on  the 
bench  regarding  the  very  problems  which  were  taken  up  in  the 
class-room,  would  furnish  a  training  for  teaching  which,  in  the 
writer's  opinion,  could  not  be  excelled.  That  the  writer  is 
not  alone  in  this  opinion  appears  from  the  remarks  made  by 
Mr.  Justice  Loring,  at  a  meeting  of  the  Bar  Association  of  Boston 
and  of  the  Supreme  Judicial  Court  of  Massachusetts,  to  honor 
the  memory  of  the  late  John  Chipman  Gray.  ' '  When  Mr.  Gray 
in  1875  accepted  a  professorship  in  the  Harvard  Law  School 
he  deliberately  chose  that  as  his  career  for  life.  He  continued 
in  active  practice  to  be  sure;  but  he  continued  in  practice  be- 
cause he  thought  that  if  he  was  in  touch  with  the  realities  of  liti- 
gation and  of  affairs  he  would  be  a  better  teacher  of  law.  So 
much  I  had  from  Mr.  Gray  himself.  *  *  *  jje  was  the  bet- 
ter teacher  for  being  in  active  practice ;  he  was  the  better  lawyer 
from  the  learning  which  came  from  teaching  law." 

During  the  twelve  years  from  1905  to  1917  the  writer  spent 
at  least  one-third  of  his  time  in  teaching  law  at  Northwestern 
University  and  other  law  schools.  He  finally  had  the  privilege 
of  teaching  at  the  Harvard  Law  School  in  the  year  1916-1917, 
That  entire  experience,  taken  with  his  experience  in  practice, 
has  only  confirmed  the  belief  that  so  long  as  our  states  administer 
justice  as  they  now  do,  some  law  schools  in  some  jurisdictions 
must  soon  begin  to  teach  the  local  law.  In  the  larger  and  older 
states  the  law  teachers  must  do  again  what  Langdell  and  his 
associates  did.  They  must  re-write  and  re-state  the  law  for  law 
students.  Only  this  time  the  work  must  be  done  with  reference 
to  the  decisions  and  statutes  of  two  jurisdictions,  the  single  state 
and  the  United  States.  This  is  a  task  which  needs  (and  as  yet 
has  not  secured)  the  same  genius  and  industry  that  Langdell  and 
his  associates  exhibited  when  they  undertook  to  re-state  and  re- 
analyze the  great  subjects  of  the  common  law.  No  teacher  of 
today  need  think  his  talents  superior  to  the  task  of  today. 

The  writer  acknowledges  the  many  and  invaluable  services 
of  Miss  Mary  A.  Howie,  in  the  preparation  of  the  manuscript 
for  this  book.  He  is  indebted  to  Professor  Joseph  Warren  for 
valuable  suggestions  and  to  Mr.  Neil  C.  Head  for  a  critical  read- 
ing of  the  proofs. 

A.  M.  K. 

Chicago,  Feb.  6,  1920. 


TABLE  OF  CONTENTS 


BOOK  I 

INTRODUCTION  TO  THE  LAW  OF  ESTATES 
AND  FUTURE  INTERESTS 


,      CHAPTER  I. 
THE  FEUDAL  LAND  LAW. 

Title  I. 

TENURE    AND    ITS    INCIDENTS. 

See. 

The  feudal  system  of  tenures 1 

Military    tenures     2 

necessary  services    2 

incidents 3 

Socage  tenures  4 

kinds 4 

services   and    incidents 5 

Frankalmoigne  tenure 6 

Effect  of  the  vStatute  of  Quia  Emptores 7 

Effect  of  the  Statute  of  Charles  II 8 

Tenure  in  the  United  States 9 

Title  II. 

SEISIN    IN    ITS    RELATION    TO    ESTATES. 

Seisin  defined  in  relation  to  estates 10 

Topic  1. 

estates  in  possession — freehold,  less  than  freehold,  and  .toint 

interests. 

Freehold  estates H 

fee  simple   •  •  •  ^' 

fee  subject  to  a  condition  subsequent 12 

fee  simple  determinable  or  base  fee 1^ 

fee  tail    l* 

introductory    1** 

ix 


CONTENTS 

Sec. 

before  the  Statute  De  Donis 15 

origin  of  the  estate  tail  under  the  Statute  De  Donis 16 

the  struggle  to  make  the  estate  tail  alienable  in  fee  simple 17 

the  further  effort  to  secure  an  inalienable  estate  tail 18 

modern  legislation   1" 

estates  for  life 20 

Estates  less  than  freehold "1 

Joint  ownership   ^^ 

Topic  2. 

future  interests. 

Possibilities  of  reverter  and  rights  of  entry  for  condition  broken 23 

Reversions  after  a  particular  estate  of  freehold 24 

Remainders  after  a  particular  estate  of  freehold 25 

Springing  and  shifting  future  interests  and  limitations  to  classes 26 

Contingent  remainders " ' 

defined  27 

is  the  contingent  remainder  valid  or  invalid  under  the  feudal  law  28 

distinction  between  vested  and  contingent  remainders 29 

Seisin  of  future  interests  after  estates  of  freehold 30 

Future  interests  after  estates  less  than  a  freehold 31 

by  operation  of  law 31 

by  act  of  the  parties 32 

non-contingent   interests 32 

contingent  interests 33 

Topic  3. 

rule  in  shelley's  case. 

Statement  of  the  rule 34 

Reasoning  upon  which  the  Rule  was  established 35 

Persistence  of  the  Rule 36 

Operation  of  the  Rule 37 

Title  III. 

SEISIN    IN     ITS    RELATION    TO     CONVEYANCE. 

Distinction  between  descent  and  purchase 38 

Descent    ^^ 

from   whom   traced 39 

feudal  rules  of  descent 40 

Devise ^1 

Livery    of    seisin 42 

Grant  and  attornment — releases 43 

Conveyanfes   by    record 44 

Conveyance  of  estates  less  than  freehold '. 45 

Disseisin  and  tortious  conveyance 46 

X 


CONTENTS 


Inalienability 


Sec. 

47 


of  mere   rights  of  entry ■* ' 

of  contingent  future  interests *^ 

CHAPTER  II. 

LAND  LAW  UNDER  THE  STATUTE  OF  USES. 

Title  I. 

USES   BEFORE  THE   STATUTE. 

49 

Uses  defined 

50 
Origin  of  uses    • 

Enforcement  of  the  use  by  the  cestui 51 

Position  of  the  feoffee  and  cestui  que  use  at  law  as  distinguished  from 
their  position  in  the  chancery 52 

Title  II. 
the  statute  of  uses. 

The  statute ^^ 

Title  III. 

uses  after  the  statute. 

Topic  1. 

USES  raised  on  transmutation  of  possession. 

Defined 

Transmutation  of  possession  and  an  express  declaration  of  the  use 55 

Transmutation  of  possession  and  the  payment  of  a  consideration 56 

Transmutation  of  possession,  declaration  of  the  use  by  one  and  pay- 
ment of  the  consideration  by  another 57 

58 
Resulting  uses   

Topic  2. 

uses  raised  without  transmutation  of  possession. 

Defined    

The  bargain  and  sale  and  Statute  of  Enrollments 60 

The  Statute  of  Enrollments  avoided  by  the  "lease  and  release" 61 

No  particular  form  of  words  is  necessary  to  make  a  bargain  and  sale. .     62 

Covenants  to  stand  seized 

Summary  ' 

Topic  3. 

OPERATION    OF   THE    STATUTE— USES    WHICH    THE    STATUTE    DID    NOT    EXECUTE. 

Operation  of  the  statute ^^ 

Suppose  A  seized  in  tail  or  for  life  were  directed  to  hold  to  the  use 

of  one  in  fee 

xi 


CONTENTS     ' 

See. 

Uses  which  the  statute  did  not  execute 67 

Status  of  uses  which  the  statute  did  not  execute 68 

Whether  or  not  the  statute  executes  a  use  is  to  be  determined  finally 
at  the  time  the  use  is  created 69 

Topic  4. 

estates  and  limitations  by  way  of  use. 

Estates  of  freehold  and  less  than  freehold  in  possession .'  70 

Future  interests 71 

those  permitted  by  the  feudal  land  law  could  be  created  by  way 

of  use 71 

some  not  permitted  by  the  feudal  land  law  were  valid  when  created 

by  way  of  use 72 

springing    and    shifting   uses 72 

powers    73 

limitations  to  classes  by  way  of  use 74 

conveyance  creating  estates  will  take  effect  in  any  way  possible  75 

basis  for  new  freedom  in  creating  estates  and  future  interests  76 

contingent  remainders  by  way  of  use 77 

the  rule  of  destruetibility  applies 77 

trustees  to  preserve  contingent  remainders 78 

the  feudal  distinction  between  vested  and  contingent  remain- 
ders continued  to  be  important 79 

contingent  future  interests  by  way  of  use  after  terms  for  years.  .  80 

the  Rule  in  Shelley 's  Case 81 

Alienability  of  future  interests  created  by  way  of  use 82 

Topic  5. 

summary  of  changes  wkoticht  by  statute  of  uses. 

Summary   83 

CHAPTER  III. 

WILLS  AND  TRUSTS  OF  LAND. 

Title    I. 

WILLS. 

Origin  under  tlie  Statute  of  Wills  of  Henry  VIII 84 

Limitation  of  estates  by  devise 85 

Devise  as  a  mode  of  alienation 86 

Title  II. 

TRUSTS. 

Origin  and  reappearance  of  trusts  of  land 87 

Equitable    estates    in   land 88 

The  Rule  in  Shelley's  Case  applied  to  equitable  interests  in  land 89 

xii 


CONTENTS 


CHAPTER  IV. 


THF  L\TER  HISTORY  OF  REVERSIONS,  REMAINDERS  AND  THE 
RULE  OF  DESTRUCTIBILITY  OF  CONTINGENT  REMAINDERS. 


Title  I. 

REVERSIONS. 


Sec. 
90 


Vested  and  indefeasible '  V  V   -ui 

Vested,  but  uncertain  ever  to  take  effect  in  possession  and  defeasible- 

e   g     a  reversion  pending  the  vesting  of  a  contingent  remainder.  ...     91 
Vested',  but  subject  to  be  defeated  by  events  happening  after  the  rever-     ^^ 

sion  came  into  possession 

Title  II. 

REMAINDERS. 

,  ,     ., ,  9:? 

Vested    and   indefeasible 

Defeasible  and  uncertain  ever  to  take  effect  in  possession »* 

The  problem  of  Egerton  v.  Massey 

Title  III. 

THE    RULE    OF    DESTRUCTIBILITY    Or    CONTINGENT   REMAINDERS. 

Contingent    remainders    defined /  " 

The  continuation   of  the  rule  of   destructibility  of  contingent  remain- 
ders after  springing  and  shifting  future  interests  became  valid  and     ^^ 

indestructible    

Application  of  the  rule  of  destructibility  in  the  modern  cases «» 

where  the  remainder  is  limited  to  an  individual »» 

where  the  remainder  is  limited  to  a  class 

where,  when  the  life  estate  terminates,  no  member  of  the  class 

has  attained  a  vested  interest ^^ 

where,  when  the  life  estate  terminates,  one  member  of  the  class 

has   attained  a  vested  interest ^^ 

typical  cases  stated   and  analyzed 100 

state  of  the  English  authorities 1^1 

where  the  limitations  are  to  ''A  for  life,  remainder 

to  such  children  of  A  as  reach  twenty-one" 101 

where  the  limitations  are  to  "A  for  life,  remainder 
to  such  children  of  A  as,  eith^;r  before  or  after  A 's 

death,  reach  twenty-one     ^^  - 

the  rule  of  the  Massachusetts  Supreme  Court 103 

where  the  remainder  is  to  a  class  the  operation  of  the  rule  of  de- 
structibility must  be  distinguished  from  the  operation  of  riiles 

of  construction   for  the  determination   of  the  class 104 

\pplication  of  the  rule  of  destru.tibility   where  the  future   interest  is 
limited  on  such  events  that  it  may  take  effect  either  as  a  remainder 
or  as  a  shifting  interest  cutting  short  a  prior  vested  remainder  in  fee  lOo 
Abolition  of  the  rule  of  destructibility  by  legislation 106 

xiii 


CONTENTS 

CHAPTER  V. 

ESTATES  AND  FUTURE   INTERESTS   IN   PERSONAL   PROPERTY. 

Sec. 

Chattels  personal 107 

English  Law 107 

American  cases 108 

Chattels  real 109 

No  doctrine  of  destructibility 110 

The  Rule  in  Shelley 's  Case  has  no  application Ill 

Future  interests  in  personal  property  created  by  means  of  trusts 112 

CHAPTER  VI. 

THE  RULE  AGAINST  PERPETUITIES. 

The  necessity  for  a  rule  limiting  the  length  of  time  in  the  future  at 
which   future   interests   could   be  designated   to   take   effect  became 

apparent  in  the  17th  Century 113 

Manning 's  Case  and  Child  v.  Baylie 114 

Duke  of  Norfolk 's  Case 115 

Subsequent  leading  cases  completing  the  statement  of  the  Rule  against 

Perpetuities    116 

In  determining  when  a  freehold  interest  took  effect  in  possession  resort 

was  had  to  certain  purely  feudal  conceptions 117 

It   was   enough   if   the    future   interest  vested   in   interest    (as   distin- 
guished from  taking  effect  in  possession)  within  the  required  time.  .  118 

Statement  of  the  Rule 119 

Inaccurate  and  unsatisfactory  statements  of  the  Rule 120 

Public  policy  behind  the  Rule  against  Perpetuities 121 


BOOK  II 

INTERPRETATION  OF  WRITINGS— MORE 
ESPECIALLY  WILLS 


CHAPTER  VIL 


THE  THEORY  OF  LEGAL  INTERPRETATION  AND  AVAILABILITY 
OF  EXTRINSIC  EVIDENCE. 

Introductory  122 

Title  I. 

SUBJECT  MATTER  OP  INTERPRETATION. 

Inducement  distinguished  from  legal  act — the  writing  constituting  the 
legal  act  is  the  only  subject  matter  of  interpretation 123 

xiv 


CONTENTS 
Title  II. 

STANDARDS   OF   INTEKPEETATION. 

Sec. 

Wigmore's  three  standards  applicable  to  unilateral  acts 124 

Mr.  Justice   Holmes'  single   standard  of  interpretation 125 

The  "will"  or  "intention"  of  the  inducement  as  a  standard  of  inter- 
pretation       126 

Title  III. 

SOURCES  FOR  ASCERTAINING  THE  TENOR  OP  THE  STANDARD  OF  INTERPRETATION 
— EXTRINSIC   EVIDENCE. 

The  instrument  itself 127 

Extrinsic  evidence 12g 

introductory    128 

the  rule  against  "disturbing  a  clear  meaning". 129 

direct  declarations  by  the  testator  or  settlor 130 

such  declarations  as  relate  to  the  standard  of  interpretation 
used,  when  they  do  not  also  disclose  the' objects  and  pur- 
poses of  the  inducement,  should  be  received 130 

declarations  of  the  testator  or  settlor  which  disclose  the  ob- 
jects and  purposes  of  the  inducement 131 

when  excluded 131 

exception  in  the  case  of  equivocation 132 

even  where  extrinsic  evidence  (other  than  direct  declarations 
of  the  testator  or  settlor)  tends  to  prove  an  individual 
standard  of  interpretation  in  cases  of  ambiguity,  it  may 
still  be  excluded  because  of  too  slight  and  remote  probative 
force  and  too  likely  to  be  used  improperly  to  establish  the 
inducement  as  a  rival  subject  matter  or  standard  of  inter- 
pretation      133 

TITI.E  IV. 

CASES    ILLUSTRATING   THE   APPLICATION    OP   SOME   OP   THE   FOREGOING 

PRINCIPLES — PARTICULARLY   THE  RULE  AGAINST  DISTURBING 

THE  PLAIN   MEANING. 

Introductory   I34 

Description   of  property  devised I3.5 

where  the  description  of  the  land  devised  is  precisely  and  in  all 
particulars  applicable  to  an  existing  piece  of  land  no  ambiguity 
arises  and,  though  the  extrinsic  evidence  shows  beyond  question 
a  mistake  in  using  the   description  expressed,  that  description 

must  prevail  as  a  matter  of  construction 135 

where,  however,  the  description  of  the  land  devised  is  not  precisely 
and  in  all  particulars  applicable  to  an  existing  piece  of  land, 
the  description  is  not  sensible  with  reference  to  the  extrinsic 
circumstances  and  that  part  of  the  description  which,  in  \-iew 
of  admissible  extrinsic  circumstances,  appears  to  be  false  may 
be  rejected  under  the  rule  falsa  demonstratio  non  nocet 136 

XV 


CONTENTS 

Sec. 
the  princijial  diflieiilty  is  iu  detenniuiiig  whether  or  not  the  descrip- 
tion of  the  land  devised  is  precisely  and  in  all  particulars  ap- 
plicable to  an  existing  piece  of  land 137 

after  part  of  a  description  has  been  rejected  under  the  rule  of 
''falsa  demomtratio "  the  meaning  of  what  is  left  must  be  con- 
strued and  given  effect  according  to  the  usual  principles  of  con- 
struction       138 

Indentilieation  of  the  devisee 139 

Who  are  included  in  vrords  of  general  description — such  as  "children," 

* '  heirs, "   or   "  issue  "    140 

Where  the  question  is  as  to  the  estate  created  or  the  nature  of  a  con- 
tingency   141 

Title  V. 

COMMENTS    UPON    THE    "OBJECT    OF    INTERPRETATION"   AND    UPON    "STRICT" 
.AND  * '  LIBERAL  ' '  CONSTRUCTIONISTS. 

The  object  of  interpretation — what  part  does  the  "intention"  of  the 

inducement  play 142 

Strict  and  liberal  constructionists 143 

CHAPTER  VIII. 

SUGGESTIONS  CONCERNING  THE  PRACTICE  OF  THE  ART  OF 
INTERPRETATION. 

There  is  an  art  of  interpretation 144 

Caution  against  indulging  in  speculation  and  conjecture  as  to  what  the 
testator  intended — the  interpreter  should  not  infer  what  he  (the  in- 
terpreter) would  have  intended  had  he  been  placed  in  the  position 
of  the  testator   145 

In  determining  the  effect  to  be  given  to  surrounding  circumstances 
(even  when  admissible)  to  support  a  secondary  meaning,  a  practical 
distinction  should  be  observed  between  the  cases  where  the  difficulty 
is  one  of  ascertaining  what  persons  are  to  take,  or  what  property  is 
conveyed,  and  those  where  the  question  is  what  estate  is  created  or 
the  nature   of   a   contingency 146 

The  interpreter  should,  whenever  possible,  inquire  into  the  primary  and 
secondary  meanings  of  words  and  phrases  with  a  view  to  adhering 
to  the  primary  meaning  unless  the  secondary  meaning  is  fairly  re- 
quired     147 

It  is  an  especially  strong  reason  for  adhering  to  the  primary  mean- 
ing of  the  language  in  question  as  against  slight  contextual  elements 
and  surrounding  circumstances  supporting  a  secondary  meaning,  that 
the  difficulty  of  construction  is  one  upon  which  the  testator's  mind 
never  acted,  so  that  there  is  no  actual  intent  of  the  inducement.  .  .  .   148 

The  place  of  the  argument  from  absurdity  or  incongruity 149 

The  art  of  balancing  all  the  considerations  on  one  side  against  all  those 
on  the  other 150 

xvi 


CONTENTS 

Sec. 

Tlic  language  used  imist  be  able  to  l)ear  the  meauing  i)laced  upon   it 

and  no  additions  must  be  made  to  the  context  of  what  is  not  in  it.  .    151 
Tijc  place  of  precedent  in  handling  problems  of  construction 152 


BOOK  III 
ESTATES 

CHAPTER  IX. 

FEE  SIMPLE. 

Title  I. 

HOW     CREATED    AT    COMMON'     LAW    AND    UNDER    THE     STATUTES    OF    USES    AND 

■WILLS. 

In  conveyances  inter  vivos    l^-^ 

Where  the  transfer  was  by  devise 15-t 

Tlio  common  law  rules  prevailed  in  this  State  until  July  31,  1837 155 

Title  II. 

UNDER   SEC.   13,   R.    S.    1874,   OH.   30. 

The  statute 1^6 

Cases  where  an  estate  less  than  a  fee  is  limited  by  express  words 157 

Cases  where  the  primary  effect  of  the  conveyance  to  create  a  fee  was 
confirmed  by  the  use  of  the  common  law  words  of  limitation,  i.  e., 

' '  heirs  "    158 

Cases  where  the  primary  effect  of  the  transfer  to  create  a  fee  was  con- 
firmed by  the  use  of  expressions  other  than  the  common  law  words 

of  limitation 159 

Cases  where  there  is  a  transfer  to  A  simpliciter  and  no  context  showing 
an  intent  that  A  shall  or  shall  not  take  the  fee,  but  where  under  the 

statute  he  nevertheless  does  so 16'i 

Cases  where  the  only  special  context  tends  to  indicate  that  a  less  estat* 
than  a  fee  was  intended,  but  where  this  context  is  deemed  to  be  in- 
sufficient to  overcome  the  primary  statutory  meaning 161 

Transfer  to  A  simpliciter  followed  by  a  gift  "at  his  decease" 162 

Transfer  to  A  simpliciter  followed  by  a  gift  "in  case  of  his  death"  or 
gome  other  expression  treating  A 's  death  as  a  contingent  event....   163 

Effect  of  gifts  over 164 

where  the  limitations  are  to  A  simpliciter  with  a  gift  or  gifts  over 
on  A 's  deatli  and  on  one  or  more  collateral  contingencies,  which, 

however,  do  not  exhaust   all  the  possibilities 164 

where  the  limitations  are  to  A  simpliciter,  with  gifts  over  on  sev- 
eral contingencies   which   exhnust   all  the  possibilities 165 

xvii 


CONTENTS 

Sec. 
where  the  limitations  are  to  X  for  life,  remainder  to  A  simpliciter, 
with  a  gift  or  gifts  over  on  A's  death  and  on  one  or  more  col- 
lateral contingencies  which  do  not  exhaust  all  the  possibilities..   166 
where  the  limitations  are  to  X  for  life,  remainder  to  A  simpliciter, 
with  gifts  over  on  several  contingencies  which  exhaust  all  the 

possibilities 167 

Limitations  to  A  simpliciter  with  power  in  A  to  dispose  of  an  absolute 

interest  in  the  property,  and  upon  failure  to  do  so,  over  to  B 168 

Miscellaneous  contexts  only  superficially  related — limitations  to  A  and 
his  children  and  their  children 169 

Title  III. 

LIMITATIONS  TO  "  A  OR  HIS  HEIRS. ' ' 

Where  there  is  no  preceding  estate 170 

in  a  conveyance  inter  vivos 170 

by  way  of  devise 171 

Where  there  is  a  preceding  life  or  other  estate. 172 

limitations  in  a  conveyance  inter  vivos 172 

by  way  of  devise 173 

meaning  of  "or  his  heirs"  where  the  words  introduce  a  substitu- 
tionary gift 174 

Where  there  is  a  preceding  life  estate  with  gifts  over  on  contingencies, 
with  an  ultimate  gift  over  to  "A  or  his  heirs " 175 

Where  the  ultimate  gift  is  to  the  grantor  ' '  or  his  heirs " 176 

Title  IV. 

CONFLICTING    PROVISIONS — CONFLICT    BETWEEN    THE    PREMISES    AND    THE 

HABENDUM. 

Courts  attempt  to  reconcile  apparently  conflicting  clauses 177 

Where  an  actual  conflict  occurs 178 

the  rule  as  to  deeds 178 

the  view  of  the  common  law 178 

common  law  rule,  how  far  modified 179 

where  the  premises  provide  for  the  lesser  estate  and  the 

habendum  for  the  larger 179 

where  the  premises  provide  for  the  larger  and  the  haben- 
dum the  lesser  estate 180 

modification  of  the  common  law  rule  by  statute ....   180 
tendency,  apart  from  statute,  to  modify  the   strict- 
ness of  the  common  law  rule 181 

where  devises  are  involved 182 

Title  V. 

ESTATE  WHICH  A  TRUSTEE  TAKES. 

Introductory  183 

Testamentary  trusts 184 

cases  where  there  are  no  explicit  words  of  devise  to  the  trustee. . .   184 

xviii 


CONTENTS 

Sec. 

cases  where  there  are  explicit  words  of  devise  to  the  trustee 185 

effect  of  R.  S.  1874,  Ch.  30,  Sec.  13 185 

where  real  estate  is  devised  to  trustees  and  an  estate  for  the 

life  of  the  beneficiary  is  expressly  indicated 186 

where  real  estate  is  devised  to  trustees,  although  with 
words  of  inheritance,  or  where  such  words  are  supplied  in 
effect  by  R.  S.  1874,  Ch.  30,  Sec.  13,  prima  facie  the  trus- 
tees take  only  so  much  of  the  legal  estate  as  the  purposes 

of  the  trust  require ^°' 

a  fcxrtiori,  where  no  words  of  inheritance  are  used  and  no 
statute  like  R.  S.  1874,  Ch.  30,  Sec.  13,  exists,  the  trustee 
takes  only  such  estate  as  the  purposes  of  the  trust  require  188 
where  there  are  words  of  devise  to  the  trustee  and  the  trustee 
is  given  power  to  sell  and  convey  the  fee  and  is  directed  to 
wind  up  the  trusts  by  making  an  actual  division  among  the 
beneficiaries  and  conveyances  to  them,  the  trustee  takes  the 

fee    ;•••   ^^^ 

where  there  are  words  of  devise  to  the  trustee  and  he  is  to 
make  conveyances  upon  the  termination  of  the  trusts,  but 

has  no  power  of  sale 1^" 

where  there  arc  words  of  devise  to  the  trustee  and  he  is  given 
power  to  sell  but  not  directed  to  convey  to  the  beneficiaries 

at  the  termination  of  the  trusts 191 

where  there  are  words  of  devise  to  the  trustee  and  power  to 
make  leases,  but  no  power  to  sell  the  fee  and  no  direction  to 
convey  to  the  beneficiaries  at  the  termination  of  the  trusts . .   192 
Where  the  trusteeship  is  created  by  a  conveyance  inter  vivos 193 

CHAPTER  X. 
FEE  TAIL. 

The  Statute  on  Entails •  •  •   ^^^ 

Words  sufficient  under  the  Statute  De  Bonis  to  create  an  estate  tail..   195. 

in  conveyances  inter  vivos 19o 

by  devise •  ■ 

in  several  eases  where  the  context  contained  the  phrase  "heirs  of 
the  body"  an  estate  tail  was  upon  the  whole  context  held  not 

to  have  been  created •    l97 

Suppose  the  words  used  are  not  sufficient  under  the  Statute  De  Donis 
to  create  an  estate  tail,  but  are  sufficient  to  express  an  intention  to 

create  such  an  estate 

Suppose  personal  property  is  limited  with  such  expressions  as,  if  used 
in  a  conveyance  or  devise  of  real  estate,  would  create  an  estate  tail.  .   199 
suppose  the  limitations  of  personal  property  are  to  "A  and  the 
heirs  of  his  body,"  or  to  "A  for  life  and  then  to  the  heirs  of 

his  body  " ^;  ^^^ 

suppose  the  limitations  of  personalty  are  to  "A  and  his  issue" 
or  to  "  A  and  the  issue  of  his  body  " 200 

xix 


CONTENTS 

CHAPTER  XI. 

ESTATES  FOR  LIFE. 

Title  I. 

BY   EXPRESS    WORDS. 

Sec. 

Defined 201 

Created 202 

by  words  explicitly 202 

expressly  by  construction 203 

Title  II. 

IMPLICATION    OF  LIFE   ESTATES,  DISTRIBUTIVE   CONSTRUCTION   AND   DISPOSITION 
OF  INTERMEDIATE  INCOME. 

The  problems  stated 204 

Implication  of  the  life  estate  where  there  is  a  gift  after  the  death 

of  A 205 

The  distributive  construction 206 

Intermediate  income 207 

introductory    207 

the  rules  established  by  the  cases 208 

criticism  of  the  rule  that  the  intermediate  rents  and  profits  of  a 

residue  of  realty  go  to  the  heir-at-law 209 

CHAPTER  XII. 

JOINT  INTERESTS. 

Of  real  estate 210 

joint  tenancies  other  than  those  in  trustees  and  executors 210 

the  statutes. .' 210 

construction  211 

joint  tenancies  in  executors  and  trustees 212 

estates  by  the  entirety  in  husband  and  wife 213 

tenancy  in  common 214 

In  personal  property 215 


BOOK  IV 
FUTURE  INTERESTS 


CHAPTER  XIII. 

RIGHTS  OF  ENTRY  FOR  CONDITION  BROKEN. 

Title  I. 

ESTATES  WHICH  MAY  BE  SUBJECT  TO  A   CONDITION  SUBSEQUENT. 

Fee  simple 216 

mortgages    217 

Terms   for  year.s 218 

XX 


CONTENTS 

Sec. 
Title  II. 

CONCERNING   THE   EXISl-ENCE   AND  CHAKACTEK  OK  THE  CONDITIONS. 

Topic  1. 
conditions  created  by  act  of  the  parties. 
What   words   are   effective   to   create   a   right  of   entry   for   condition 

broken    219 

effect  of  a  re-entry  clause 219 

where  the  conveyance  is  for  certain  express  purposes,  or  upon  a 
motive  expressed,  or  upon  a  certain  consideration,  or  "upon  the 
express  agreement,"  or  "provided,  however,  the  grantee  shall 

do"  thus  and  so,  and  there  is  no  re-entry  clause 220 

cases  where  a  grantee  is  to  support  the  grantor  for  the  remainder 

of  his  life  or  pay  him  an  annuity 221 

cases  where  words  of  condition  are  used,  but  there  is  no  re-entry 

22'> 
clause  

the  primary  meaning  of  the  words  of  condition 222 

how  far  resort  may  be  had  to  circumstances  surrounding  the 

making  of  the  deed  to  impose  upon  words  of  condition  alone 

the  effect  of  creating  a  covenant  only 223 

introductory    '^"'^ 

a  strong  circumstance  that  a  condition  is  created 224 

Post  v.  Weil 225 

Drueeker  v.  McLaughlin 226 

Breach  of  condition  created  by  act  of  the  parties 227 

Topic  2. 
conditions  created  by  operation  of  law. 

Upon  the  conveyance  of  a  fee  simple 2-8 

.                 ,                                                                                               ...    228 
m   general 

2'*9 
mortgages  " 


difficulty  in  the  rule  that  when  the  debt  is  barred  the  mort- 
gagee has  no  right  to  possession 

view  that  the  mortgagee  has  a  base  or  determinable  fee 

view  that  the  mortgagee's  interest  after  default  is  subject  to 


a   condition   subsequent ''^'■ 

barring  of  the  debt  is  simply  an  equitable  defence  to  the  mort- 

gagee  's  legal  title -" " 

In  case  of  leaseholds 

implied  condition  that  a  tenant  shall  not  repudiate  the  tenancy  and 

claim  to  hold  against  the  landlord 233 

by  Acts  of  1865  and  1873 234 

prior  to  1865  no  ground  of  forfeiture  in  the  absence  of  express 
condition    234 

O'iA 

introductory    *"" 

''35 
on  principle " 

not  altered  by  any  statute  down  to  1865 236 

xxi 


CONTENTS 

See. 

see.  2  of  the  Act  of  1865  afterwards  appearing  as  see.  9  of 

the  Act  of  1873 237 

sec.  8  of  the  Act  of  1873 238 

whether  these  acts  have  any  retroactive  effect 239 

Title  III. 

WHO   MAY   TAKE   ADVANTAGE   OP  A   BREACH  OP  A   CONDITION    SUBSEQUENT   AND 
WHO   TAKE  SUBJECT  TO  THE   CONDITION. 

When  attached  to  a  fee  simple 240 

When  attached  to  an  estate  for  life  or  years 241 

Who  take  subject  to  the  condition 242 

Title  IV. 

EFFECT  OF  THE  BREACH  OF  A  CONDITION  SUBSEQUENT  AND  MODE  OF 
perfecting  a  FORFEITURE. 

Estate  voidable,  not  void 243 

Mode  of  perfecting  a  forfeiture 244 

of  freehold  estates 244 

of  estates  less  than  freehold 24.5 

the  common  law  method  of  forfeiture 245 

effect  of  Illinois  statutes  upon  the  common  law  method  of  for- 
feiture     246 

in  case  of  default  in  payment  of  rent 246 

Act  of  1827 246 

sec.  2  of  the  Act  of  1865,  appearing  as  sec.  9  of  the 

Act  of  1873 247 

sec.  4  of  the  Act  of  1865 248 

see.  8  of  the  Act  of  1873 249 

how  far  has  a  forfeiture  by  a  common  law  demand 
for  rent  been  abolished  by  the  Acts  of  1827,  1865, 

and  1873 250 

for  cause  other  than  default  in  the  payment  of  rent 251 

sec.  2  of  the  Act  of  1865,  appearing  afterwards  as 

sec.  9  of  the  Act  of  1873 251 

how  demand  may  be  made  or  notice  served 252 

retroactive  effect  of  the  Acts  of  1827,  1865  and  1873 253 

method  of  perfecting  a  forfeiture  as  altered  by  the  agreement 

of  the   parties 254 

.    provisions  for  the  benefit  of  the  landlord 254 

provisions  for  the  protection  of  the  tenant 255 

Title  V. 

REMEDY   IN   CASE   OF  FORFEITURE  DULY   PERFECTED. 

By   ejectment   or   forcible   detainer   suit 256 

Actual  entry  upon  the  land 257 

action  of  forcible  entry  and  detainer  for  possession   by  the  one 
put  out 257 

xxii 


CONTENTS 

Sec. 

introductory    257 

where  the  entry  is  forcible :  •  ■   258 

before   1872    258 

since    1872    259 

where  the  entry  is  peaceable 260 

what  entry  is  peaceable  and  what  forcible 261 

how  far  may  the  one  put  out  sue  in  trespass  q.  c.  f.,  assault  and 

battery,  and  d.   b.  a 262 

three  possible  views 262 

the  Illinois  cases 26.3 

first  indications    263 

Reeder   v.   Purdy 264 

its  real  scope 2G4 

subsequent  cases:     Fort  Dearborn  Lodge  v.  Klein..   265 
the  ground  of  the  rule  laid  down  in  Reeder  v.  Purdy  266 

distinction  between  forcible  and  peaceable  entry 267 

the  vice  of  Reeder  v.   Purdy 268 

the  virtue  of  Fort  Dearborn  Lodge  v.  Klein 269 

some   further   questions 270 

view  of  the  Appellate  Court  in  the  first  district 271 

before  the  Klein  case 271 

since  the  Klein  case 272 

in  trespass  q.  c.  f 272 

Judge  Gary 's  view 272 

sustained  by  other  judges 273 

contrary  to  the  rule  of  the  Supreme  Court..   274 
in  trespass  for  assault  and  battery  and  de  bonis 

asportatis    275 

defence  of  leave  and  license 276 

How  far  equity  will  enforce  a  forfeiture 277 

Title  VI. 

RELIEF  AGAINST  FORFEITURE. 

At  law  278 

several  methods  of  relief 278 

license     279 

waiver 280 

estoppel 281 

In  equity    282 

Title  VII. 

KIOIIT     OF     ENTRY     FOR     CONDITION     BROKEN     DISTINGUISHED     FROM     A     POSSI- 
BILITY  OF  REVERTER — RIGHTS   OF   THE   DEDICATOR   AND   ABUTTING 
OWNER  ON   A  STATUTORY   DEDICATION. 

Distinction  between  a  right  of  entry  for  condition  broken  and  a  possi- 
bility of  reverter 283 

xxiii 


CONTENTS 

See. 

The  interest  of  the  dedicator  upon  a  statutory  dedication 284 

what   sort    is   it 284 

on  principle 284 

on   authority    285 

how  does  it  arise 286 

Rights  of  abutting  owners  upon  vacation  of  a  statutory  dedication.  .  .  .   287 

in  the  absence  of  statute 287 

the  Acts  of  1851,  1865  and  1874 288 

effect  and  constitutionality  of  these  acts 289 

the  wider  and  narrower  meaning  of  these  acts 289 

these  acts  only  operative  in  their  narrower  meaning,  because 
in  their  wider  meaning  they  would  be  unconstitutional  and 

unjust 290 

are  these  acts  in  their  wider  meaning  unconstitutional  or  unjust  291 

a  difficulty  about  opening  this  question 291 

such  acts  are  neither  unjust  to  the  dedicator  nor  contrary 

to    public    policy     292 

their  constitutionality 293 

retroactive  effect  of  these  acts 294 

when  their  narrower  meaning  is  adopted 294 

upon  their  wider  meaning  295 

application  of  these  statutes  in  their  narrower  meaning  to  the  case 

of  vacations  of  streets  in  canal  trustees'  subdivisions 296 

introductory    296 

power  of  canal  commissioners  and  canal  trustees  to  dedicate 

streets    297 

upon  such  dedication  the  fee  passes,  leaving  a  right  to  enter 

in  the  dedicator  in  case  of  vacation 298 

upon  the  vacation  of  a  canal  subdivision  the  fee  in  the  street 
should  go  to  the  abutting  owners 299 

CHAPTER  XIV. 

POSSIBILITIES  OF  REVERTER. 

Possibilities   of   reverter   described 300 

Distinguished  from   a  conditional  limitation 301 

How  far  valid  in  Illinois 302 

CHAPTER  XV. 
REVERSIONS  AND  REMAINDERS. 

Title  I. 

REVEESIONS. 

Examples  of  reversions 303 

Reversions  are  indestructible  by  any  rule  of  law  defeating  intent  and 

alienable    304 

A   difikulty  of  construction 305 

xxiv 


CONl-ENTS 

Sec. 
Whether  after  the  creation  by  devise  of  a  freehold  followed  by  contin- 
gent interests  a  residuary  Rift  results  in  the  creation  of  a  reversion 
or  a  remainder 306 

Title  II. 

THE    CREATION    OF    REMAIXDEKS. 

Several  points  which  have  been  passed  upon 307 

Title  III. 

KEMAINDERS  WHICH  AS  CKB1j\TED  ARE  CERTAIN  TO  TAKE  EFFECT  BECAUSE  THEY 
ABE  NOT  LIMITED  IN  DURATION  OR  DEFEASIBLE  ON  ANY  EVENT  EXPRESSED 
AND  WHICH  STAND  READY  TO  TAKE  EFFECT  IN  POSSESSION  WHENEVER 
AND  HOWEVER  THE  PRECEDING  PARTICULAR  ESTATE  OF  FREEHOLD  DETER- 
MINES— COMMONLY  CALLED  VESTED  KEMAINDERS. 

Examples  of  such  remainders — they  are  valid,  indestructible  and 
alienable   308 

Title  IV. 

REMAINDERS  LIMITED  TO  TAKE  EFFECT  UPON  AN  EVENT  EXPRESSED  AS  A 
CONDITION  PRECEDENT  IN  FORM  WHICH  MAY  HAPPEN  BEFORE  OR  AFTER, 
OR  AT  THE  TIME  OP  OR  AFTER,  THE  TERMINATION  (WHENEVER  OR  IN 
WHATEVER  MANNER)  OF  THE  PRECEDING  PARTICULAR  ESTATE  OK  FREE- 
HOLD  COMMONLY   CALLED   CONTINGENT   REMAINDERS. 

Examples  of  contingent  remainders   309 

Topic  1. 
rule  of  destructibility  of  contingent  remainders, 

This  rule  in  force  in  Illinois 310 

Method  of  operation  of  the  rule 311 

by  the  premature  destruction  of  the  life  estate  by  merger 311 

by  forfeiture  of  the  life  estate 312 

by  the  expiration  of  the  life  estate  in  due  course  before  the  hap- 
pening of  the  event  upon  which  the  contingent  remainder  is  to 

vest  313 

the  partial  destruction  of  a  contingent  remainder  occurs  where  the 
life  estate  terminates  before  the  contingency  happens  as  to  an  un- 
divided interest  only   314 

Where  the  remainder  is  to  a  class  and  has  vested  in  one  or  more  mem- 
bers of  the  class  before  the  termination  of  the  life  estate,  the  rule 
of  destructibility  does  not  apply  to  the  interests  of  the  other  mem- 
bers  of  the   class 315 

The  rule  of  destructibility  does  not  apply  where  the  interests  are  equit- 
able       316 

The  rule  of  destructibilty  appears  not  to  be  called  into  operation  when 
the  widow,  having  a  life  estate  by  will,  renounces 317 

XXV 


CONTENTS 

Sec. 
Does  the  rule  of  destructibility  apply  to  the  statutory  remainder  created 

by  the  Statute  on  Entails 318 

Methods  of  securing  an  adjudication  that  a  contingent  remainder  has 

been  destroyed  : 319 

Topic  2. 
inalienability  op  legal  contingent  remainders. 

Inalienable  by  conveyance  inter  vivos 320 

Extinguishment  by  release   320a 

Operation  of  the  doctrine  of  estoppel  by  covenants  of  warranty 321 

where  the  remainder  vests  in  the  warrantor 321 

where  the  remainder  vests  in  the  warrantor's  heir 322 

case  stated  and  considered  on  principle 322 

the  state  of  the  cases  in  this  State  makes  the  law  uncertain. .  323 

Alienable  by  descent 324 

Alienable  by  devise 325 

Topic  3. 

when  the  contingent  remainder  vests. 

Remainderman  en  ventre  sa  mere 326 

Title  V. 

REMAINDERS  WHICH  ARE  UNCERTAIN  EVER  TO  TAKE  EFFECT  IN  POSSESSION 
BECAUSE  OF  LIMITED  DURATION  OR  SUBJECT  TO  BE  DIVESTED  BY  SOME 
EVENT  EXPRESSED  AS  A  CONDITION  SUBSEQUENT  IN  FORM,  BUT  WHICH 
STAND  READY  THROUGHOUT  THEIR  CONTINUANCE  TO  TAKE  EFFECT  IN  POS- 
SESSION WHENEVER  AND  HOWEVER  THE  PRECEDIN(i  ESTATE  OF  FREEHOLD 
DETERMINES — REMAINDERS  VESTED,  BUT  OF  LIMITED  DURATION  OR  DE- 
FEASIBLE. 

Examples  of  such   remainders — their  validity  and   indestructibilty  by 

any  rule  of  law  defeating  intent — their  alienability 327 

Propriety  of  calling  remainders  of  this  class  vested * . .  328 

Title  VI. 

PROBLEMS  OF  CONSTRUCTION  WHICH  ARISE  IN  DETERMINING  WHETHER  PAR- 
TICULAR REMAINDERS  ARE  CONTINGENT,  AND  SO  DESTRUCTIBLE  AND  IN- 
ALIENABLE, OR  VESTED  (WHETHER  INDEFEASIBLE  OR  DEFEASIBLE)  AND  SO 
INDESTRUCTIBLE  BY  ANY  RULE  OF  LAW  DEFEATING  INTENT,  AND  ALIEN- 
ABLE. 

Introductory    ^29 

Limitations  to  A  for  life,  remainder  to  B  "  after  the  death  of  A " 330 

Where  the  limitations  are  to  A  for  life  and  "if  B  overlive  A,"  then 

to  B  for  life 331 

Eemainders  in  default  of  appointment 332 

xxvi 


CONTENTS 

Sec. 
Where  the  limitatioriH  arc  by  devise  to  A  for  life,  remainder  to  B  (an 
individual  as  distinguished  from  a  class),  "if"  or  "when"  he  shall 
attain   a  given  age,  or  "at"  a  given  age,  with  a  gift  over  in  the 

event  of  his  dying  under  that  age 333 

Suppose  the  life  estate  be  omitted  and  limitations  are  directly  to  A 
"if,"  or  "when"  he  shall  attain  twenty-one,  with  a  gift  over  in 

case  he  dies  under  that  age 334 

Where  the  limitations  are  by  devise  to  A  for  life,  then  to  the  children 
of  A   (a  class),  "at,"  "when,"  or  "if"  they  attain  twenty-one, 

with  a  gift  over  in  default  of  children  who  attain  twenty-one 335 

Where  the  remainder  is  to  "the  children  of  A  who  shall  attain  twenty- 
one"  or  "to  such  children  of  A  as  shall  attain  twenty-one,"  with  a 

gift  over  in  default  of  children  attaining  that  age 336 

Limitations  to  A  for  life,  remainder  to  B  "  if  he  survive  A;  if  he  does 

not,"    to    C 337 

Limitations  to  A  for  life,  remainder  to  the  children  of  A  "who  sur- 
vive," and  if  any  die  before  A,  to  their  children,  if  any;  if  not,  then 

over    338 

Where  the  limitations  are  to  "A  for  life,  remainder  to  the  children  of 
A  who  survive  A,  and  to  the  children  of  any  who  do  not  survive  A," 

without  any  further  gift  over 339 

Where  the  limitations  are  to  A  for  life,  remainder  to  B  "if  he  survive 

A,"  and  if  he  does  not  and  dies  without  leaving  issue,  over  to  C.  . .  .   340 
Where  the  limitations  are  to  A  for  life,  remainder  to  "his  children 
surviving  him,"  with  a  gift  over  if  A  die  "without  issue  surviving 

him"    341 

Where  the  limitations  are  to  A  for  life,  remainder  "in  case  A  dies  leav- 
ing any  children  surviving,"  to  them,  the  issue  of  any  child  taking 
their  deceased  parent's  share;   but  should  A  survive  all  the  children 

(they  having  died  without  issue) ,  then  to  A 342 

Remainder  to  A,  B  and  C,  "or  the  survivor  or  survivors ' '  of  them ....   343 
Limitations  to  A  and  B  for  life  and  in  case  of  the  death  of  either,  to 

the  other   344 

Cases  where' a  remainder  has  been  limited  without  any  explicit  condition 
precedent  in  form  that  the  remainderman  survive  the  life  tenant, 
but  where  there  has  been  a  gift  or  gifts  over  in  case  the  remainder- 
man dies  before  the  life  tenant 345 

bearing  of   the   results  noted   in   the   preceding  sections   upon   the 

problem  of  construction  now  presented 345 

where  the  remainder  is  to  named  individuals  with  a  gift  over  if  any 

die  before  the  life  tenant,  to  survivors 346 

where  the  remainder  is  to  named  individuals  or  to  a  class,  with  two 
gifts  over — usually  one,  "if  any  die  leaving  children,  to  such  chil- 
dren," and  the  other,  "if  any  die  without  children,  to  the  sur- 
vivors, "  or  "if  all  die  without  children,  to  A " 347 

where  the  remainder  is  to  named  individuals  (who  are  adults),  or 
to  a  class  (in  esse  and  adult),  with  a  single  gift  over  if  any  die 
without  leaving  children  or  issue,  to  the  survivors 348 

xxvii 


CONTENTS 

Sec. 
where  the  remainder  is  to  the  unborn  children  of  the  life  tenant 
■with  a  single  gift  over  if  the  life  tenant  dies  without  leaving 

children  or  issue  surviving 349 

where  the  remainder  .is  to  named  persons  or  to  a  class,  with  a  single 
gift  over  if  any  die  before  the  life  tenant  leaving  children,  then 

to  those  children    350 

Suppose  the  remainder  be  limited  "to  the  life  tenant's  children  who 
survive  the  life  tenant  and  in  case  any  die  leaving  children,  to  such 
children,"  is  the  ultimate  gift  over  also  contingent  upon  the  grand- 
children surviving  the  life  tenant 351 

Suppose  there  is  first  a  contingent  remainder  to  the  life  tenant 's  sur- 
viving children  or  to  her  lineal  heirs  and  then  a  remainder  is  limited 
to  a  class  upon  the  life  tenant's  dying  without  leaving  children  or 
issue,   is   the    second    remainder    to    the    class   also   contingent   upon 

the  remainderman  surviving  the  life  tenant 352 

Effect  on  vesting  of  the  fact  that  the  remainder  is  limited  to  a  class.  .   353 
Effect  of  special  directions  that  the  remainder  is  to  "  vest "  or  "  become 

absolute ' '  on  the  death  of  the  life  tenant 354 

Whether  a  future  interest  is  a  vested  remainder  subject  to  a  charge,  or 
a  spriaiging  executory  interest  contingent  upon  the  one  to  whom  it  is 

limited  paying  a  sum  after  the  termination  of  the  life  estate 355 

Cases  dealing  with  whether  there  is  a  condition  precedent  in  form  that 
the  remainderman  survive  the  life  tenant  where  personal  property 
is  involved,  are  not  authoritative  where  real  estate  is  involved 356 

Title  VII. 

THE   NEW   YORK    STATUTORY    DISTINCTION   BETWEEN   VESTED    AND   CONTINGENT 

REMAINDERS  USED  TO  DETERMINE  THE  ALIENABILITY  OR  INALIENABILITY 

OF  REMAINDERS  IS  NOT  IN  FORCE  IN  ILLINOIS. 

The   New   York   statutory    distinction   between   vested    and   contingent 

remainders 357 

The  Illinois  cases  regularly  and  without  exception  assume  the  common 
law  or  feudal  distinction  between  vested  and  contingent  remainders  to 
be  in  force  in  this  State  and  endeavor  to  apply  it,  and  have  explicitly 

rejected  the  New  York  statutory  distinction  358 

Cases  which  it  is  claimed  show  the  adoption  in  Illinois  of  the  New  York 
statutory  distinction  in  every  instance,  excepting  one,  will  be  found 
to  reach  a  proper  result  without  applying  the  New  York  doctrine, 
and  the  one  case  which  did  apply  the  New  York  statutory  distinction, 
and  another  purporting  to  follow  it,  have  been  in  terms  overruled.  .  359 
cases  dealing  with  the  statutory  remainder  created  by  the  Statute 

on  Entails   359 

Voris  V.  Sloan 360 

Smith  V.  West   361 

Siddons  v.  Cockrell   362 

Kellett  V.  Shepard 363 

Burton  v.  Gagn^"    364 

xxviii 


CONTENTS 

Sec. 

Boatman  v.  Boatman    365 

Chapin  v.  Nott 366 

Ruddell  V.  Wren    367 

Oir  V.  Yates 368 

Title  VIII. 

JURISDICTION    OF    EQUITY'    TO    SET    ASIDE    AND    ENFORCE    TRANSFERS    OF    REVER- 
SIONS   AND    REMAINDERS. 

Introductory    369 

Setting  aside  transfers  of  reversions  and  vested  remainders  which  were 

indefeasible   370 

Setting  aside  transfers  of  reversions  and  vested  remainders  which  are 

defeasible   371 

Suppose  the  transfer  of  the  reversion  or  vested  remainder  were  by  a 

guardian 's  sale 372 

Suppose  the  transfer  of  the  reversion  or  remainder  were  by  execution 

sale  373 

Specific  performance  of  transfers  of  contingent  remainders  as  contracts 

to  convey  when  the  remainder  vests 374 

Specific  performance  of  a  guardian's  attempted  transfer  of  the  ward's 

contingent   remainder    375 

Equitable  execution  upon  contingent  remainders  by  creditor's  bill....  376 
Suppose  the  interest  attempted  to  be  transferred,  while  in  form  like  a 

contingent  remainder,  is  equitable  and  not  legal 377 

Conclusion 378 

Title  IX. 

ATTORNMENT. 

Attornment  no  longer  nece.ssary  for  the  transfer  of  reversions  and  vested 
remainders    379 

Title  X. 

DESCENT    OF    REVERSIONS,    REMAINDERS    AND    OTHER    FUTURE    INTERESTS,    FROM 

WHOM  TRACED. 

At  common  law 380 

Under  the  Illinois  statute 381 

No  distinction  in  the  tracing  of  descent  between  reversions  and  vested 
remainders  on  the  one  side  and  contingent  remainders  and  executory 
interests  on   the   other 382 

Title  XI. 
adverse   possession    against   reversioners    and    remaindermen. 

Topic  1. 
where  one  enters  under  a  conveyance  from  the  life  tenant. 

Where  one  enters  under  a  conveyance  purporting  to  transfer  the  life 
estate  only    383 

xxix 


CONTENTS 

See. 
Where  one  enters  under  a  conveyance  by  the  life  tenant  purporting  to 
transfer  the  fee 384 

Topic  2. 

when  the  life  tenant  is  disseised  and  the  remainder  is  vested. 

Results  reached  by  the  cases  generally 385 

What  estate  does  the  disseisor  of  the  life  tenant  have  after  the  statute 

has  run  against  the  life  tenant  only 386 

Illinois   cases  apparently   contra 387 

where  the  life  estate  is  that  of  a  husband  by  the  marital  right  in 

his  wife 's  fee   387 

before  the  first  Married  Woman 's  separate  property  act 387 

effect  of  the  Illinois  Married  Woman's  separate  property  act 

of  1861    388 

Castner  v.  Walrod   388 

Enos  V.  Buckley    389 

where  the  disseisor  of  the  life  tenant  enters  under  a  void  guardian 's 

sale  of  the  reversioner 's  interest 390 

Nelson  v.  Davidson 390 

Field  V.  Peeples 391 

Miscellaneous  problems    392 

suppose  the  life  estate  is  released  to  the  vested  remainderman,  or 
both  the  life  tenant  and  the  vested  remainderman  convey  to  a 

third  person    392 

it  becomes  important  in  applying  the  statute  of  limitations  to  de- 
termine whether  a  life  estate  is  subject  merely  to  a  forfeiture  for 
a  breach  of  condition,  or  whether  it  comes  to  an  end  by  express 

limitation  before  the  life  tenant 's  death 393 

suppose  the  remainderman  is  also  interested  in  the  life  estate 394 

Topic  3. 

where  the  remainder  is  contingent. 

The  statute  cannot  begin  to  run  against  the  remainderman  till  the  event 
happens  upon  which  the  remainder  is  to  vest 39.') 

Where  the  life  tenant  is  barred  by  the  statute  will  a  legal  contingent 
remainder  be  destroyed 396 

Topic  4. 

where  the  adverse  claimant  has  no  notice,  actual  or  constructive, 

op  the  instrument  creating  the  life  estate. 

Results  of  the  eases  stated 397 

Title  XII. 

VARIOUS    LEGAL    CONSEQUENCES    WHICH   DEPEND    UPON    WHETHER    THE    FUTURE 
INTEREST — USUALLY   A  REMAINDER IS   CONTINGENT  OR   NON-CONTINGENT. 

When  can  the  tenant  in  common  of  a  future  interest  maintain  a  bill  for 
partition    398 

XXX 


CONTENTS 

See. 

Bight  of  holder  of  future  interest  to  prevent  waste  by  the  one  in  pOB- 
session    3&9 

When  the  holder  of  a  future  interest  need  not  be  made  a  party  de- 
fendant to  a  suit  in  chancery 400 

Whether  an  inheritance  tax  is  immediately  assessable 401 

CHAPTER  XVI. 

THE  STATUTORY  REMAINDER  CREATED   BY  THE  STATUTE  ON 
ENTAILS  AND  REMAINDERS  LIMITED  AFTER  AN  ESTATE  TAIL. 

Title  I. 

THE  STATUTORY  REMAINDER. 

Statutes    402 

Their  operation    403 

The  statutory  remainder   404 

prior  to  the  birth  of  issue  of  the  donee  in  tail 404 

after  the  birth  of  issue  of  the  donee  in  tail 405 

three  views  as  to  the  character  of  the  remainder  and  the  per- 
sons entitled  to  it 40.3 

state  of  the  decisions  of  the  Illinois  Supreme  Court 406 

Assuming  that  the  statutory  remainder  is  limited  to  "children" 407 

can  the  remainderman  be  restricted  to  a  special  class  of  children  in 

the  case  of  an  estate  tail  special 407 

at  what  period  of  time  does  the  class  close 408 

If  the  language  of  the  statute  were  taken  literally,  who  precisely  would 
be  entitled  to  the  remainder 409 

Title  II. 

REMAINDERS   AFTER   THE  ESTATE  TAIL. 

Before  the  statutory  remainder  vested  by  the  birth  of  children  of  the 
donee   in   tail 410 

After  the  statutory  remainder  has  vested  by  the  birth  of  a  child  of  the 
donee  in  tail 411 

CHAPTER  XVII. 
RULE  IN  SHELLEY'S  CASE. 

Title  I, 
statement  of  the  rule  and  its  application. 

Topic  1. 

in  general. 

The  Rule  in  force  in  Illinois  stated 412 

Where  the  life  estate  and  remainder  differ  in  quality — one  being  legal 
and  the  other  equitable — the  Rule  does  not  apply 413 

xxxi 


CONTENTS 

Sec. 

Where  the  remainder  is  not  to  ''heirs"  but  to  "children"  the  Eule 
does   not   apply 414 

Where  the  grant  or  devise  is  "to  A  and  his  heirs ' '  the  Eule  has  no 
application 415 

It  does  not,  however,  prevent  the  application  of  the  Rule  that  other 
estates  or  interests  arc  inserted  between  the  life  estate  and  the  re- 
minder to  heirs 416 

The  Rule  applies  though  the  life  tenant  takes  a  part  interest  in  the 
estate  for  life  and  a  remainder  in  the  whole,  or  the  entire  interest 
for  life  and  a  part  interest  in  the  remainder 417 

Topic  2. 

where  the  limitations  are  to  a  for  life,  remainder  "to  the  heirs 

of  the  body"  of  a. 

There  have  been  dicta  and  decisions  that  the  Rule  does  not  apply  to 
such  limitations 4''  8 

There  are  three  grounds  for  insisting  that  the  Rule  does  not  apply 
where  the  remainder  is  to  the  "heirs  of  the  body"  of  the  life  tenant  419 

The  recent  cases,  however,  hold  that  the  Rule  does  apply  where  the 
remainder  is  to  "the  heirs  of  the  body"  of  the  life  tenant 420 

Topic  3. 
where  the  remainder  is  to  "heirs,"  or  "heirs  op  the  body"  of  the 
life  tenant,  to   what  extent   can   "heirs,"   or   "heirs  of   the 

body"    be    CONSTRUED    TO    BE    WORDS    OF    PURCHASE    AND    NOT    WORDS    OF 
LIMITATION   AND  THE   APPLICATION   OF   THE   RULE   THEREBY   BE   AVOIDED. 

Conflicting  results  of  the  cases 421 

What  is  meant  by  ' '  heirs "  as  a  word  of  purchase  and  as  a  word  of 
limitation     422 

The  first  theory  of  the  application  of  the  Rule  is  that  it  applies  only 
when  ' '  heirs "  in  a  remainder  to  heirs  is  used  as  a  word  of  limita- 
tion embracing  the  whole  line  of  inheritable  succession,  and  that  it 
does  not  and  cannot  apply  where  ' '  heirs "  in  a  remainder  is  used  as 
a  word  of  purchase 423 

The  second  theory  respecting  the  application  of  the  Rule  is  that  it 
applies  when  the  word  ' '  heirs ' '  in  the  remainder  is  used  as  a  word 
of  purchase 424 

Neither  of  the  above  two  theories  is  supported  by  all  the  results  of  the 
English  cases  which  are  now  recognized  as  law 425 

A  third  theory  which  will  reconcile  at  least  all  the  English  cases 426 

In  American  jurisdictions  the  situation  is  apt  to  be  chaotic  in  the  ex- 
treme    427 

The  cases  in  Illinois 428 

Topic  4. 
where  the  interests  are  equitable — executory  trusts. 

The  Rule  applies  where  the  limitations  are  equitable 429 

The  Rule  does  not  apply  where  the  trust  is  executory 430 

xxxii 


CONTENTS 

Sec. 

What  trusts  are  executory 431 

two  views  not  generally  adopted 431 

the  generally  accepted  view 432 

suggestions  of  the  cases  in  aid  of  the  problem  of  construction.  .  .  .   433 

Topic  u. 

the  rule  does  not  .\pply  to  per.son.\i.  property. 

(Conclusion  stated 434 

Where  the  bequest  is  to  A   for  life  and  then   to  "A's  executors  and 

administrators "   435 

Where  the  bequest  is  to  A  for  life  and  then  to  his  "heirs" 436 

Where  there  is  a  bequest  to  A  for  life  with  a  remainder  to  "the  heirs 

of  A 's  body "    437 

There  are  decisions  which  seem  to  hold  that  upon  a  bequest  to  A  for 

life  and  then  to  A 's  heirs,  the  Rule  applies  and  A  has  an  absolute 

interest    438 

Suppose  the  limitations  of  personal  property  are  included  in  a  residuary 

gift  of  real  and  personal  property  to  A  for  life  and  then  to  A 's  heirs  439 

Title  II. 

METHOD   OF   OPER.\TION   OF   THE   RULE. 

The  Rule  operates  in  no  manner  whatever  upon  the  estate  of  freehold 
in  A,  but  only  upon  the  remainder 440 

Title  III. 

CHARACTER   OF   THE   RULE. 

The  Rule  is  not  one  of  construction,  but  an  absolute  rule  of  law  which 
operates  to  defeat  the  intent  of  the  testator  or  settlor 441 

CHAPTER  XVIII. 
SPRINGING  AND  SHIFTING  FUTURE  INTERESTS. 

Introduction    442 

Title  I. 
by  deed — future  uses. 

Topic  1. 

shifting  interests  by  deed  are  valid  in  illinois. 

Introduction    443 

The  Illinois  authorities  are  divided 444 

cases  in  support  of  the  validity  of  shifting  interests  by  deed....  444 

cases  apain.st  the  validity  of  shiftincr  future  interests  by  deed....  445 

xxxiii 


CONTENTS 

See. 

Contentions   446 

of  the  cases  which  seem  to  hold  shifting  interests  invalid 446 

stated   446 

repugnancy   447 

the  common  law  rule  that  a  fee  cannot  be  limited  after  a  fee  448 

of  eases  which  hold  the  shifting  interest  by  deed  valid 449 

Reasoning  of  both  lines  of  cases  valid  so  far  as  it  goes 450 

general  view 450 

the  common  law  system  of  conveyancing 451 

development  under  the  Statute  of  Uses 452 

the  principles  of  the  common  law  and  of  the  system  of  conveyanc- 
ing which  developed  under  the  Statute  of  Uses  exist  side  by  side 

as  part  of  the  law  of  Illinois  today 453 

The  special  issue 454 

Shifting  limitations  by  deed  may  be  supported  here  by  force  of   the 

Statute  of  Uses 455 

conveyances  by  deed  in  Illinois  have  never  operated  under  the  com- 
mon law 455 

conveyances  by  deed  in  Illinois  have  always  taken  effect  under  the 

Statute  of  Uses 456 

the  fact  that  our  deeds  in  Illinois  may  operate  under  the  acts  of 
1827   and   1872   cannot   interfere   with  the   validity   of   shifting 

interests   created   by   them 457 

Shifting  interests  by  deed  may  be  supported  in  Illinois  under  the  acts 

of    1827    and    1872 458 

The  tendency  to  hold  shifting  future  interests  by  deed  invalid  is  re- 
actionary      459 

character  of  the  changes  in  the  law  of  conveyances 459 

the  attitude  of  our  Supreme  Court 460 

The  weight  of  authority  in  this  State  is  in  favor  of  the  validity  of 

shifting  interests  by  deed 461 

Trend  of  the  recent  Illinois  authorities 462 

Topic  2. 
springing  future  interests  by  deed. 

Conveyances  to  take  effect  at  the  grantor 's  death  valid 463 

the  future  interest,  void  at  common  law,  sustained  on  two  theories  464 
which  of  these  two  views  is  correct 465 

Conclusion  466 

Title  II. 

BY  WILL — EXECUTORY  DEVISES. 

Executory  devises  in  general  valid 467 

the  authorities 467 

three  cases  contra 468 

Andrews   v.   Andrews 468 

xxxiv 


CONTENTS 

Sec. 

Ewing  V.  Barnes  and  Silva  v.  Hopkinson 469 

Ewing  V.  Barnes  and  Silva  v.  Hopkinson  now  overruled 470 

the  recent  cases  have  also  disposed  of  the  fallacy  that  because  some 
shifting  interests  were  void  for  "repugnancy"  all  must  be  void  471 

Title  III. 

BY    MEANS    or   TRUSTS — WHETHER    CREATED    INTER    VIVOS    OR    BY    WII,L. 

Equitable  springing  and  shifting  interests  valid 472 

Title  IV. 

VALIDITY    OF   GIFTS   TO   CLASSES. 

Under  the  feudal  land  law 47.'*. 

By  devise  after  the  Statute  of  Wills 474 

By  a  conveyance   inter  vivos  which  can   take  effect  as  a  bargain  and 

sale  or  otherwise  by  way  of  use 47.'j 

if  the  conveyance  is  to  "the  children  of  A,  born  and  to  be  born" 
and  A  has  at  the  time  of  the  conveyance  no  children,  can  the 

after-born   diildren   of   A   take 475 

suppose  A  has  at  the  time  of  the  conveyance  a  child  in  esse 476 

suppose  that  by  a  deed  the  limitations  are  to  A  for  life,  remain- 
der to  the  children  of  A,  "born  and  to  be  born,"  and  one  child 

is  in  esse  at  the  time  of  the  conveyance 477 

By  the  creation  of  equitable  interests  in  favor  of  the  class 478 

Title  V. 

ALIENATION     OF     SPRINGING     AND     SHIFTING     FUTURE     INTERESTS     IN     LAND — 

PARTITION. 

By   descent,  devise,  release,  and   sale  on   execution 479 

By  a  conveyance  to  a  stranger  inier  vivos 430 

validity   at   law 480 

4  SI 
in  equity ■*°'^ 

Title  VI. 

AVHEN     AN    EXECUTORY    INTEREST    VESTS    IN    INTEREST. 

Springing  and  shifting  future  interests  never  vest  in  interest  till  they 
take  effect  in  possession  or  are  turned  into  vested  remainders 482 

Title  VII. 

INDESTRUCTIBILITY   OF   SPRINGING    AND   SHIFTING   FUTURE   INTERESTS. 
General  principle ■*^'" 

Title  VIII. 

WHETHER    DOWER    IN    THE    FIRST    TAKER'S    FEE    IS    DEFEATED    BY    THE    TAKING 
EFFECT   OF    A    SHIFTING    llIFT    OVER. 

Bnckworth   v.   ThirkoU 4^-* 

XXXV 


CONTENTS 

CHAPTER  XIX. 

FUTURE  INTERESTS  IN  PERSONAL  PROPERTY. 

Sec. 

Their  validity 485 

in  general 485 

exception  where  articles  are  necessarily  consumed  in.  the  using. . . .  486 

Nature  of  the  future  interest 487 

whether  legal  or  equitable 487 

whether  vested  or  executory 488 

where  a  chattel  real  is  involved 488 

where  the  limitation  is  of  a  chattel  personal 489 

the  language  of  the  Supreme  Court 489 

the  point  actually  decided 490 

whether  contingent  upon  surviving  the  life  tenant 491 

Rights  of  those  interested  in  personal  property  in  which  future  inter- 
ests are  created 492 

enjoyment  in  specie  or  conversion  and  investment 492 

where  the  intent  of  the  settlor  is  expressed  in  words 492 

where  no  intent  has  been  explicitly  indicated  by  words 493 

how  may  the  second  taker  protect  his  property  interest 494 

CHAPTER  XX. 
VESTING  OF  LEGACIES. 

Sense  in  which  "vest"  is  used  when  the  question  of  the  vesting  of 
legacies  is  considered 49o 

A  distinction  must  be  drawn  between  the  case  where  the  question  is 
whether  a  legacy  is  contingent  on  the  legatee  surviving  at  a  future 
period  of  distribution  and  where  the  same  question  arises  in  respect 
to  legal  remainders  and  springing  interests  in  land 496 

Title  I. 

LEGACIES    CHARGED   ON    LAND. 

A  distinction  must  be  observed  between  the  cases  where  the  question 
is  whether  a  legacy  payable  out  of  the  personal  estate  is  contingent 
on  the  legatee  surviving  at  a  future  period  of  distribution  and  where 
the  same  question  arises  in  respect  to  a  legacy  charged  on  land  and 
actually  paid  out  of  the  proceeds  of  the  land 497 

Title  II. 

LEGACIES   ACTUALLY    PAID    OUT   OF   PERSONAL    PROPERTY. 

The  results  reached  by  the  courts  are  for  the  most  part  merely  sug- 
gestive as  to  what  considerations  will  furnish  a  substantial  inference 

for  or  against  the  vesting  of  the  legacy 498 

xxxvi 


CONTENTS 


Topic  1. 


WHERE   THERE    IS    A    DIRECT    OII'T    WITH    A    SUPERADDED    DIRECTION    TO    PAY    AT 

A    FUTURE    TIME. 

Sec. 
In  these  cases  the  context  .justifies  the  prima  facie  inference  that  the 
gift  is  immediate  subject  only  to  a  postponement  as  to  payment  and 
is  not  contingent  upon  the  legatee  surviving  the  period  of  distribution  499 

Topic  2. 

where  the  only  gift  is  to  be  found  in  the  direction  to  pay  or  divide 
at  a  future  ti.me. 

In  such  cases  the  context  justifies  the  prima  facie  inference  that  the 
legacy  is  contingent  upon  the  legatee  surviving  the  date  of  payment  500 

Cases  where  a  difficulty  arises  in  determining  whether  there  is  a  direct 
gift  with  a  superadded  direction  to  pay  at  a  future  time,  or  a  gift 
only  in  the  direction  to  pay  at  a  future  time 501 

Topic  3. 

whether  the  direction  to  pay  at  the  future  time  is  for  reasons 

personal  to  the  legatee  or  merely  for  the  convenience  of 

the  estate. 

This  is  important  in  determining  whether  or  not  the  legacy  is  con- 
tingent     502 

Cases  where  the  only  gift  was  contained  in  the  direction  to  convert  and 
divide  after  a  life  estate  and  where  the  postponement  was  held  to 

be  merely  for  the  convenience  of  the  estate 503 

Similar  cases  which  hold,  or  appear  to  hold,  the  legacy  contingent  upon 

the  legatee  surviving  the  life  tenant 504 

People  v.  Jennings 504 

Banta  v.  Boyd 505 

Ebey  v.  Adams 506 

Barnes  v.  Johnston 507 

Strode  v.  McCormick 508 

Cases  where  it  is  doubtful  whether  the  direction  to  pay  at  a  future 
time  is  for  the  convenience  of  the  estate  or  personal  to  the  legatee.  .   509 

Topic  4. 
effect  on  vesting  of  the  payment  of  interest  or  income. 

Cases  where  the  payment  of  interest  or  income  has  no  effect  on  vest- 
ing distinguished  from  those  where  it  may  have  such  an  effect 510 

Principle  upon  which  the  payment  of  interest  or  income  gives  rise  to 
an  inference  in  favor  of  vesting  the  legacy 511 

"Where  the  legacy  is  to  a  named  individual  at  a  future  time,  with  in- 
terest or  income  in  the  meantime 51- 

Where  the  legacy  is  to  a  class  at  a  future  time,  with  the  ibcome  in 

the  meantime ^^^^ 

XXX  vii 


CONTENTS 

Sec. 
Cases  (a)  where  the  income  is  not  given  during  the  entire  period  before 
distribution,  and  (b)  where  all  the  income  is  accumulated  and  given 
at  the  period  of  distribution  along  with  the  principal 514 

Topic  5. 

legacies  payable  when  the  youngest  of  several  legatees  reaches  a 

given  age, 

The  rule  of  Leeming  v.  Sherratt 515 

Topic  6. 

miscellaneous  grounds  of  inference  in  favor  of  vesting. 

The  fact  that  the  legacy  is  of  a  residue,  or  consists  of  a  trust  fund 

separated  from  the  balance  of  the  estate 516 

Where  a  charge  is  placed  upon  the  share  of  the  legatee 517 

Effect  of  references  to  "shares"  or  "portions"  of  legatees  to  whom 
the  only  gift  is  in  a  direction  to  pay  or  divide  at  a  future  time .   518 

Topic  7. 

effect  of  gifts  over. 

Inference  in  favor  of  vesting  founded  upon  the  presence  of  a  gift  over  519 

Cases  where  the  gift  over  furnished  an  argument  for  vesting 519a 

Inference  in  favor  of  the  gift  being  contingent  founded  upon  the  pres- 
ence of  a  gift  over 520 

Reflecting  back  a  contingency  of  survivorship  from  the  context  of  a 
gift  over  of  what  the  legatee  would  have  had  if  living 521 

Topic  8. 

express  directions  as  to  vesting. 

Inference  in  favor  of  contingency  where  there  is  an  express  direction 
as  to  vesting 522 

Topic  9. 

effect  of  the  gift  or  legacy  being  to  a  class. 

The  general  rule  is  that  no  inference  of  contingency  arises  from  the 

fact  that  the  legacy  is  to  a  class 523 

Drury  v.  Drury ' 5^4 

'  Topic  10. 

effect  to  be  given  to  the  testator's  inducement. 

What  attention  should  be  paid  to  inferences  in  favor  of  vesting  or 
contingency  derived  from  a  probable  inducement  of  the  testator....   525 

xxxviii 


CONTENTS 

Topic  11. 

cases  'ivijekk  no  qukstion   ok  vesting  arises  sliolld  be  carefllly 
distinguished. 

Se«. 
The  cases  wluif  ihvw  is  a  gift  over  if  the  legatee  dies  before  the 
period  of  distril)ution  and  where  by  the  happening  of  the  divesting 
contingency  the  gift  over  takes  effect,  must  be  distinguished  from 
the  cases  wlierc  the  (|uestion  is  whether  the  future  legacy  is  subject 
to  a  condition  precedent  that  the  legatee  survive  the  period  of  dis- 
tribution       ^"^ 

Topic  12. 

balancing  inferences  for  and  against  vesting. 

Cases  illustrating  the  manner  in  which  the  foregoing  considerations, 
or  some  of  them,  must  be  discovered  and  balanced  against  each  other 
in  order  to  obtain  a  result  as  to  whether  or  not  the  legacy  is  vested 
or   contingent 527 

Title  III. 

EQUITABLE  INTERESTS  IN  LAND  OR  IN  A  MIXED  RESIDUE  OF  REAL  AND 
PERSONAL  PROPERTY. 

On  what  basis  is  llie  vesting  or  contingency  of  the  gift  of  such  in- 
terests to  be  decided 528 

[Note  on  the  period  to  which  survivorship  is  referred  in  gifts  to  "sur- 
vivors"  or   persons  "surviving."] 

CHAPTEE  XXL 

GIFTS    OVER    UPON    THE    "DEATH"    OF    A    PREVIOUS    TAKER 

SIMPLICITER  OR  "WITHOUT  CHILDREN,"  OR  "WITHOUT 

ISSUE,"  OR  "WITHOUT   HEIRS." 

Title  I. 

TO    WHAT   PERIOD   IS    "  DEATH "    REFERRED. 

Limitations  by  will  to  A  simpliciter  followed  by  a  gift  "at  his  de- 
cease "    529 

Limitations  by  will  to  A  simpliciter  followed  by  a  gift  "in  case  of 
his  death, ' '  or  some  other  expression  treating  A 's  death  as  a  con- 
tingent event 530 

Limitations  by   will   to  a   A   simpliciter   with   a   gift   or  gifts  over  on 

A  's  death  and  one  or  more  collateral  contingencies 531 

Limitations  by  will  to  X  for  life,  then  to  A  simpliciter,  with  a  gift 
or  gifts  over  on  A  *s  death  and  one  or  more  collateral  contingencies. .   532 

the  rule  of  the  English  cases 532 

the  course  of  decision  in  Illinois  is  somewhat  in  doubt 533 

some  results  reached  by  our  Supreme  Court  are  supported  by  defi- 
nite special  contexts 53^ 

xxxix 


CONTENTS 

Sec. 

Limitations  to  X  for  life,  then  to  A  for  life,  and  in  case  of  A's  death 
and  on  the  happening  of  a  collateral  contingency  over 535 

Where  property  is  vested  in  trustees  who  are  directed  to  distribute  at 
a  certain  time,  so  that  the  trust  then  detennines  and  the  legatees, 
who  are  to  take  upon  the  death  of  prior  legatees,  are  to  do  so  through 
the  medium  of  a  conveyance  from  the  same  trustees 536 

Limitations  by  will  to  A  at  a  period  of  distribution  after  the  testator 's 
death,  with  a  gift  over  if  A  dies  before  the  period  of  distribution.  .   537 

Title  II. 

MEANING      OF      "without"      IN      GIFTS      OVEK      IF      THE      FIRST     TAKER     DIES 
* '  WITHOUT  CHILDREN. ' ' 

Two  possible  meanings  of  the   word  ' '  without " 538 

If  there  is  no  independent  gift  to  the  children  of  the  first  taker,  ' '  with- 
out ' '  means  primarily  ' '  without  children  surviving  " 539 

When  there  is  an  independent  gift  to  the  first  taker's  children  or  issue, 
so  that  a  child  upon  birth  acquires  a  vested  interest,  "without" 
may  mean  ' '  without  ever  having  had " 540 

Where  there  is  an  independent  gift  to  the  first  taker's  children  con- 
tingent upon  their  surviving  the  first  taker,  a  gift  over  if  the  first 
taker  "die  without  children"  means  die  without  children  surviving 
the   first  taker ^"^l 

Title  III. 

MEANING    OF    "WITHOUT    ISSUE"    IN    GIFTS    OVER    IF   THE    FIRST    TAKER    DIES 

WITHOUT  ISSUE. 
There  are  three  possible  meanings  to  the  phrase  "die  without  issue".  .   542 
Where  there  is  an  independent  gift  to  the  issue  of  the  first  taker  which 

vests  an  interest  in  such  issue  as  soon  as  born 543 

Suppose,   however,   there   is   no   independent   gift   to   the   issue   of   the 

first  taker 544 

results  of  the  English  cases  and  effect  of  the  Wills  Act 544 

the  position  taken  by  the  Illinois  Supreme  Court 545 

in  general 545 

Stafford  v.  Read  and  Kendall  v.  Taylor 546 

O  'Hare  v.  Johnston 547 

Whether  an   indefinite   failure   of  issue  is  meant  where   "die  without 

issue ' '  introduces  a  remainder  after  an  estate  tail 548 

Results  which  would  follow  if  our  Supreme  Court  held  a  future  interest 
other  than  a  remainder  after  an  expressly  created  estate  tail  to  have 

been  limited  upon  an  indefinite  failure   of  issue 549 

Ewing  V.  Barnes ^^" 

Title  IV. 

MEANING   OF   "ISSUE"    IN    GIFTS   OVER   IF   THE   FIRST   TAKER   "DIES   WITHOUT 

ISSUE, ' ' 

When   construed   as   meaning   ' '  children " 551 

Xl 


CONTENTS 

Title  V. 

MEANING   OP  "heirs"    IX    A    GIFT  OVER   IF  THE   FIRST  TAKER   "DIES   WITHOUT 

HEIRS." 

Sec. 
When  construed  as  meaning  * '  heirs  of  the  body  "  or  "  children ' '  of 
the   first  taker 5r,2 

CHAPTER  XXII. 

LIMITATIONS  TO  CLASSES. 

Title  I. 

A  gift  to  a  class  distinguished  from   a   gift  TO   INDIVIDUALS. 

Importance  of  this  question 55.3 

Cases  where  the  class  may  increase  or  diminish  even  after  the  tes- 
tator 's   death 554 

Cases  where  the  class  may  increase  or  diminish  up  to  the  testator's 
death,  but  cannot  increase  afterwards,  or  may  neither  increase  nor 
diminish  afterwards 555 

Suppose  the  gift  is  to  the  "children"  of  a  person  deceased  at  the 
time   the  will   is  executed 556 

Volunteers  of  America  v.  Peirce 557 

Title  II. 

VALIDITY   OF  gifts  TO   A   CLASS. 

Where  no  interest  is  limited  preceding  the  gift  to  the  class  and  sub- 
sequently born  members  of  the  class  are  intended  to  take 558 

Where  the  gift  to  the  class  is  a  remainder 559 

which  vests  in  interest  upon  the  birth  of  a  member  of  the  class 
and   where   it  is  expressly  provided   that  afterborn  members  of 

the  class  are  to  take 559 

where  the  remainder  to  the  class  is  subject  to  a  condition  pre- 
cedent in  form  which  may  not  happen  until  after  the  termina- 
tion of  the  life  estate 560 

Title  III. 

RULE    IN    wild's    CASE. 

Where  a  devise  is  made  to  "A  and  his  children"  and  at  the  time  of 
the  devise  and  of  the  testator's  death  A  has  children 561 

Where  a  devise  is  made  to  "A  and  his  children"  and  A  has  at  the 
time  of  the  devise  no  children 562 

Title  IV. 

DETERMINATION    OF    CLASSES. 

Distinction  between  the  rules  for  the  determination  of  classes  and  thoBe 
which  determine  whether  the  gift  to  the  class  is  contingent  upon  the 
members  of  the  class  surviving  the  period  of  distribution 563 

Xli 


CONTENTS 

Sec. 

Rule  when  the  period  of  distribution  is  the  death  of  the  testator 564 

Rule  when  the  period  of  distribution  is  the  termination  of  a  life  estate  565 
Suppose  the  property  to  be  distributed  to  the  class  is  subject  in  part 

to  a  life  estate  and  the  gift  to  the  class  is  in  terms  immediate 566 

Rule  when  the  period  of  distribution  comes  because  of  the  happening 

of  a  contingency  to  a  member  of  the  class 567 

where  there  is  a  contingent  gift  to  the  children  of  A  who  reach 

twenty-five 567 

where  the  gift  to  the  class  is  vested 568 

where  the  gift  is  to  children  of  A,  to  be  divided  among  them  when 

the  youngest  reaches  twenty-one 569 

where  the  gift  is  after  a  life  estate  to  such  children  of  A  as  reach 
twenty-one 570 

Title  V. 

MEANING    OF    "  HEIRS "    IN    A    LIMITATION    TO    THE   TESTATOR'S    "HEIRS,"    OB 
THE  "heirs"   of  a  LIVING  PERSON. 

Primary  meaning  of  * '  heirs  "    571 

Gift  to  the  testator 's  heirs  where  a  preceding  interest  is  expressly  lim- 
ited to  one  who  is  an  heir  or  the  sole  heir  of  the  testator  at  his  death  572 
Whether   a   surviving   spouse    is    included   in    a    gift   to   the   deceased 

spouse 's  heirs-at-law  573 

where  no  preceding  interest  is  limited — distributive  construction.  .   573 
where  a  preceding  interest  for  life  is  limited  to  the  spouse  with  a 

gift  over  to  the  testator 's  heirs 574 

[Note  on  cases  where  "lieirs"  has  been  construed  to  mean  "children."] 

Title  VI. 

meaning  of  "issue"  in  gifts  TO  "issue." 

The  primary  meaning  of  "issue" — "issue"  as  including  descendants 

and  as  limited  to  children. 575 

When  Lssue  has  been  held  to  include  all  descendants  the  question  arises, 
does  it  mean  all  descendants  per  capita  or  does  it  include  only  tho.se 
descendants  who  have  no  ancestors  living  and  who  stand  in  the  place 

of  their  ancestors  deceased 576 

introductory    576 

suppose  the  gift  is  direct  to  issue  and  not  to  issue  by  way  of  sub- 
stitution after  an  ancestor  deceased  to  whom  the  gift  was  orig- 
inally made 577 

suppose  the  gift  is  to  issue  by  way  of  substitution  in  place  of  a 

gift  to  the  ancestor 578 

suppose  the  gift  is  "to  the  children   of  A   and   the  issue  of  any 

deceased  child  " 579 

suppose  there  is  a  gift  ' '  to  the  children  of  A  and  the  issue  of  any 
deceased  child,  such  issue  to  take  the  parent's  share"  or  "to 
represent  and  take  the  parent 's  share" 580 

xlii 


CONTENTS 

Sec. 

suppose  the  gift  is  of  one  thousand  dollars  "to  A,  and  if  A  die 
before  the  period  of  distribution  then  to  his  issue,  said  issue 
to  take  the  share  of  their  parent"  or  "to  represent  and  take 
the  parent's  share,"  or  suppose  the  gift  is  to  A  for  life  and 
then  to  his  issue,  ' '  the  issue  to  take  the  parent  'a  share "  or  "to 

represent  and  take  the  parent 's  share  " 581 

the  present  state  of  the  cases  in  Massachusetts 582 

what  is  meant  by  the  statement  that  "where  the  gift  to  the  issue 
is  substitutional  they  take  pn-  stirpes  and  not  per  capita" 58:{ 

Title  VII. 

ADOPTED  CHILDREN — HOW  FAR  INCLUDED  IN  GIFTS  TO  "HEIRS,"  "ISSUE," 
OR  ' '  CHILDREN  '  '  OP  THE  ADOPTING  PARENT. 

Problem  stated  and  principles  to  be  applied 584 

Analysis  of  the  oases  with  reference  to  whether  the  adoption  act  can 
be  construed  as  sufficient  to  give  the  adopted  person  the  status  of 

an  ' '  heir, "  "  child  "  or  "  issue  "   585 

Analysis  of  the  cases  with  reference  to  whether  the  language  of  a  will, 
settlement  or  insurance  policy  is  to  be  interpreted  as  including  all 
persons  who  acquire  the  status  of  "heirs,"  "children"  or  "issue," 

no  matter  in  what  manner 586 

the  construction  given  to  the  word  ' '  heirs " 586 

as  to   the  construction  of  the  words  "children"  or  "issue"   in 

a  will,  settlement  or  insurance  policy 587 

the  words  "children"  or  "issue"  in  a  will,  settlement  or 
insurance  policy  executed  when  a  general  adoption  act  was 
in  force  and  by,  or  procured  by,  the  adopting  parent,  prim- 
arily and  in  the  absence  of  a  special  context  to  the  contrary, 
includes  a   person   who  obtained  by  adoption  the   status  of 

a  child 587 

the  words  "children"  or  "issue"  in  a  will,  settlement  or  in- 
surance policy  executed  while  a  general  adoption  act  was 
in  force,  and  even  though  the  same  be  executed  or  procured 
by  one  other  than  the  adopting  parent,  primarily  and  in 
the  absence  of  a  special  context  to  the  contrary,  includes 
a    person    who   obtains   by   adoption   the   legal   status   of   a 

' '  child  "  or  "  issue  "   588 

the  foregoing  proposition   is  not  controverted 589 

by  the  exception  in  the  adoption  act  providing  that  the 
adopted  child  ' '  shall  not  take  property  expressly  lim- 
ited to  the  heirs  of  the  body  or  bodies  of  the  parents 

by  adoption "  589 

by  the  Massachusetts  Act  of  1876  which  expressly  ex- 
cludes the  adopted  child  from  taking  under  the  desig- 
nation of  "children"  in  the  will  or  settlement  of  one 
other  than  the  adopting  parent,  unless  there  is  an  ex- 
press intention  that  such  child  shall  be  included 590 

xliii 


CONTENTS 

Sec. 
by  those  oases  where  the  adopted  child  was  excluded  be- 
cause the  will  or  settlement   was  executed  long  before 

there  was  any  adoption  act  in  force 591 

by  cases  where  the  special  context  of  the  instrument  shows 
that  "children"  or  "issue"  meant  a  class  composed 
of  those  who  obtained  their  status  by  actual  birth  only  592 
it  is  controverted  by  two  cases — one  from  Maine  and  the  other 

from  Wisconsin 593 

in  the  primary  meaning  to  be  placed  upon  ' '  children ' '  or 
' '  issue "  in  a  will,  settlement  or  insurance  policy,  no  dis- 
tinction is  to  be  made  between  the  instrument  executed  or 
procured  by  the  adopting  parent  and  one  executed  or  pro- 
cured by  a  stranger 594 

quaere  whether  the  fact  that  when  the  will,  settlement  or  in- 
surance policy  is  executed  there  is  no  general  adoption  act 
in  force  will  prevent  the  word  * '  children ' '  from  including 
a  person  adopted  under  a  subsequent  adoption  act 595 

CHAPTER  XXIII. 

DIVESTING  CONTINGENCIES  AND  CONDITIONS  PRECEDENT  TO 
THE  TAKING  EFFECT  OF  EXECUTORY  DEVISES  AND 
BEQUESTS— ACCELERATION. 

Interests  are  not  divested  unless  the  event  upon  which  the  divesting 

is  to  occur  strictly  happens 596 

Effect  of  the  failure  of  a  gift  over  upon  the  preceding  interest 597 

Effect  upon  an  executory  devise  of  the  failure  of  the  prior  gift 598 

Acceleration  of  future  interests 599 

CHAPTER  XXIV. 

CROSS  LIMITATIONS. 

Title  I. 

IMPLICATION    OF   CROSS   LIMITATIONS. 

General  principles   600 

Cheney  v.  Teese  and  Addicks  v.  Addicks 601 

Title  II. 

' '  SURVIVOR  ' '    CONSTRUED   ' '  OTHER. ' ' 

The  typical  case  where  "survivor"  is  construed  "other" 602 

Suppose  in  the  typical  case  given  the  ultimate  gift  over  on  the  death 

of  all  the  tenants  for  life  without  leaving  issue  be  eliminated 603 

Suppose,  while  the  original  gifts  are  to  individuals  for  life  then  to 
their  i.-:sue,  the  gift  over  is  to  the  survivor  absolutely  and  not 
merely  to  the  survivor  for  life  and  then  to  the  survivor's  issue 604 

xliv 


CONTENTS 

Sec. 

Suppose  the  first  gift  to  A  and  B  is  absolute  (instead  of  being  for  their 
lives  with  remainder  to  their  issue),  with  a  gift  over  if  either  die 
without  leaving  issue,  to  the  survivor 60o 

Sui)po80  the  limitations  are  to  sons  absolutely  at  twenty-one,  and  to 
(laughters  for  life,  and  then  to  their  issue,  but  if  either  sons  or  daugh- 
ters die  before  the  period  of  distribution  without  issue,  then  to  the 

606 

survivors    

Suppose  all  the  shares  are  "settled"  on  daughters,  as  in  the  typical 
case,  and  suppose  one  daughter  dies  without  leaving  issue  and  then  her 
issue  all  die;  subsequently  another  daughter  dies  without  issue;  do 
the  representatives  of  the  issue  of  the  first  daughter  take  a  share  of 
the  interest  of  the  daughter  dying  without  issue 607 

Title  III. 

ACCRUED  SHARES. 

,     ,  608 

Accrued  shares    

CHAPTER  XXV. 
POWERS. 

Title  I. 

CLASSIFICATION,   VALIDITY    AND    EXTINGUISHMENT    Or    POWERS— APPOINTMENT 
IN    FRAUD    OF    POWERS. 

609 

Classification  of  powers   

Validity  of  legal  interests  created  by  the  exercise  of  a  power biu 

Extinguishment    of    powers 

Appointment  in  fraud  of  powers •  ■ 

Special  restrictions  upon  the  capacity  to  be  a  donee  of  a  power  or  to 

exercise  a  power  attempted  to  be  conferred o  . 

Title  II. 

ILLUSORY    APPOINTMENTS    AND    NON-EXCLUSIVE    POWERS. 

6U 

Illusory  appointments ^  ,, 

Non-exclusive  powers    * 

The  hotchpot  clause 

Title  III. 

SURVIVAL   OF   POWERS. 

617 

Introductory   

Topic  1. 

POWERS    SURVIVING    PURSUANT   TO    STATUTE. 

Survival  in  .'asc  of  the  death  of  one  of  several  executors 618 

Survival  in  case  one  of  several  executors  refuses  to  act 619 

xlv 


CONTENTS 

Sec. 

Survival  in  case  one  of  several  executors  fails  to  qualify 620 

No  survival  to  the  administrator   with   the   will  annexed 621 

Topic  2. 

exercise  of  the  powek  which  did  not  survive  supplied  by  holding  as 
constructive  trustees  those  who  take  in  default  of  appointment, 

Where  the  power  is  in  executors  to  sell  real  estate  to  pay  debts  or 
legacies,  or  both 622 

Suppose  the  power  is  given  to  executors  to  sell  real  estate  and  dis- 
tribute the  proceeds  to  those  who  would  take  the  real  estate  if  it  were 
not    sold    623 

Topic  3. 

powers  in  executors  and  trustees  construed  as  exercisable  by  whoever 
for  the  time  being  holds  the  office. 

Distinction  between  real  and  spurious  powers 624 

Problem  wholly  one  of  expressed  intent 625 

Cases  where  the  power  is  given  to  trustees  who  take  an  absolute  interest 

in  the  trust  estate 626 

Cases  Avhere  the  beneficial  interest  is  in  A  and  where  B  and  C  have 

power  to  divert  the  beneficial  interest  by  appointment  to  D 627 

Cases  where  a  real  power  is  given  to  executors  to  sell  to  pay  debts  or 

legacies,  or  both   628 

Cases  where  the  power  in  executors  is  one  not  only  to  sell  to  pay  debts 

or  legacies,  or  both,  but  also  to  sell  for  the  convenience  of  the  estate 

and  hold  the  proceeds  for  the  one  entitled  to  the  land 629 

Cases  where  there  is  a  power  in  executors  to  sell,  not,  however,  to  pay 

debts  or  legacies,  but  to  hold  the  proceeds  for  the  benefit  of  those 

entitled  to  the  land  in  place  of  the  land 630 

Cases  where  the  executors  have  a  discretionary  power  to  sell  and  apply 

the  proceeds  in  a  way  which  changes  the  beneficial  interests 631 

Suppose  that  trustees  have  only  a  term  for  years  or  a  life  estate  and  a 

power  to  sell  the  fee  and  hold  the  proceeds  for  the  devisee  of  the  legal 

estate  in  fee  after  the  term  or  the  life  estate 632 

Treatment  of  tl^e  subject  of  survival  of  powers  by  distinguished  English 

writers    633 

Title  IV. 

POWERS    IN    TRUST   AND   GIFTS    IN    DEFAULT    OF   APPOINTMENT. 

The  problem  stated   634 

Where  there  is  a  devise  to  trustees  upon  trust  to  transfer  to  certain  per- 
sons, with  power  in  the  trustees  to  make  a  selection  or  exercise  a 

power  to  appoint  among  the  beneficiaries 635 

Where  there  is  no  gift  to  trustees  but  only  a  real  power,  there  may 
still  be  sufficient  language  from  which  the  court  can  properly  find  a 
direct  gift  to  the  objects  of  the  power 636 

xlvi 


CONTENTS 

Sec. 
Suppose  there  is  merely  a  power  to  appoint  to  special  objects  and  no 
express  gift  in  default  of  appointment,  and  no  basis  in  the  language 
used  for  any  direct  gift  to  such  objects 636 

Title  V. 

APPOINTED  PROPERTY  AS  ASSETS. 
The  usual  rule   in   force   in   Illinois 638 

Title  VI. 

DEFECTIVE  EXECUTION. 
Suggestions  by  our  Supreme  Court  in  favor  of  the  usual  doctrine....   639 

Title  VII. 

WHAT  "WORDS  EXERCISE  A  POWER. 

The  plain  case 640 

The  diflBcult  case  occurs  where  the  donee  makes  a  general  gift  of  all  his 
property  without  any  direct  reference  to  the  power  or  his  intention 
to  exercise  it 641 

Title  VIII. 

EFFECT  OF  EXCESSIVE  EXECUTION, 

Usual  rule  followed  in  Illinois 642 

Title  IX. 

EXISTENCE    AND    SCOPE    OF   POWERS    OF    SALE    AND    LEASE. 

Power  in  executors  and  trustees  to  sell  and  dispose  of  the  fee  of  real 

estate    643 

existence  of  the  power 643 

extent  of  the  power 644 

Power  in  trustees  to  make  leases 64.') 

when  the  trustee  has  a  legal  estate  in  fee  simple ^  . .  .   645 

when  the  trustee  has  a  legal,  estate  for  years  or  for  the  life  of  the 

equitable  life  tenant  only 646 

In  the  absence  of  power  in  trustees  to  sell  the  fee  or  to  make  a  long- 
term  lease,  such   sale  or  lease  may  be  effected  with  the  aid  of  a 

court  of  equity  in  cases  of  necessity 647 

Power  in  life  tenants  to  sell  or  dispose  of  the  fee 648 

existence  of   the  power    648 

extent  of  the  power    649 

disposition  of  the  proceeds  of  sale 650 

Power  of  life  tenant  to  make  leases 651 

xlvii 


CONTENTS 

CHAPTEE  XXVI. 
RULE  AGAINST  PERPETUITIES. 

Title  I. 

THE  RULE  AND  ITS  COROLLARIES. 

Sec. 

The  Rule  as  stated  by  Professor  Gray  is  in  force  in  Illinois 652 

The  future  interest  must  vest  in  the  proper  time 653 

What  is  meant  by  ' ' vest" 654 

Other  corollaries  referred  to 655 

References  to  the  Rule  as  stated  in  Bouvier  's  Law  Dictionary 656 

The  difficulty  in  most  cases  has  to  do  with  the  application  of  the  Rule 
to  the  particular  limitation 657 

Title  II, 

THE  RULE  AGAINST  PERPETUITIES  DISTINGUISHED  FROM  THE  RULE  WHICH 
MAKES  VOID  RESTRAINTS  ON  ALIENATION  AND  PROVISIONS  REQUIRING 
A  TRUSTEESHIP  (OTHERWISE  VALID)  TO  BE  EFFECTIVE  AT  TOO  REMOTE 
A  TIME. 

The  special  rule  as  to  restraints  on  alienation  and  provisions  for  inde- 
structible trusts   6:^8 


The   Illinois   cases. 


659 


Trusts  for  the  perpetual  care  of  a  cemetery  lot 660 

Effect  on  other  provisions  of  holding  void  a  requirement  that  a  trust 
should  remain  indestructible  for  too  long  a  time 661 

Title  III. 

INTERESTS  SUBJECT  TO  THE  RULE. 

Legal  interests  662 

Equitable  interests 663 

Contracts    664 

Bauer  v.  Lumaghi  Coal  Co.  and  London  &  S.  W.  Ry.  v.  Gomm 664 

options  to  purchase  665 

Title  IV. 

INTERESTS    LIMITED   TO    TAKE    EFFECT    "  WHEN    DEBTS    ARE    PAID,"    "A    TRUST 
executed,"   OR   *'A   WILL   PROBATED." 

Introductory    666 

Suppose  a  term  is  given  to  trustees  upon  trust  to  pay  debts  and  subject 

to  the  term  the  property  is  devised  to  A  absolutely 667 

Suppose  the  fee  is  given  to  trustees  upon  trust  to  pay  debts  and  when 

debts  are  paid  the  land  is  devised  to  A  absolutely 668 

is  A  'a  interest  legal  or  equitable 668 

suppose  A 's  interest  be  equitable 669 

xlviii 


CONTENTS 

Sec. 

Suppose  legacies  are  bequeathed  to  several  and  the  residue  of  the  testa- 
tor's  personal  estate  alone  is  bequeathed  to  A  "when  the  testator's 
debts  and  legacies  are  paid  and  the  estate  settled" 670 

Suppose  there  are  bequests  of  several  legacies  and  then  a  devise  to  A 
absolutely  of  the  residue  of  the  testator's  real  and  personal  estate 
"when  debts  and  legacies  are  paid  and  the  estate  settled" 671 

Suppose  that  Blackacre  be  devised  to  A  in  fee  when  the  testator's  debts 
are  paid,  there  being  no  charge  of  the  debts  upon  the  real  estate  by 
words,  but  only  by  the  usual  statute  making  real  estate  liable  for  the 
payment  of  debts  after  the  personal  estate  is  exhausted 672 

Suppose  a  devise  be  made  of  Blackacre  to  A  in  fee  when  the  testator 's 
debts  and  legacies  are  paid  and  neither  the  debts  nor  legacies  are 
charged   upon    the   real   estate   by   the   testator's   words   or   by   any 

statute ■ 

Suppose  a  devise  in  fee  to  trustees  upon  trust  to  pay  debts  and  legacies 
and  when  the  same  are  paid  to  divide  the  estate  among  such  of  his 

children  or  more  remote  issue  as  may  "then"  be  living .    674 

Suppose  that  the  devise  be  in  fee  to  trustees  upon  trust  for  A  for  life 
and   immediately  upon  A's  death  to  pay  A's  debts  and  when  his 

debts  arc  paid  to  divide  among  the  testator 's  then  living  issue 675 

Gifts  conditioned  upon  the  devisee  making  payments  to  others 676 

Title  V. 

LIMITATIONS   TO   CLASSES. 

Introductory    

Problem  where  the  interest  to  the  class  is  vested  as  distinguished  from 

executory,  but  subject  to  a  postponed  enjoyment  clause 678 

cases  (a)   and   (b) ^^^ 

cases   (c)   and   (d) ^^^ 

cases  (e)  and  (f ) 

Problem  where  the  interest  to  the  class  is  contingent  upon  their  attain- 
ing   twenty-five    . 

cases   (a)   and   (b) ^^^ 

Title  VI. 

SEPARABLE   LIMITATIONS. 

Contingencies  separated  by  act  of  the  testator  or  settlor 68.t 

Separation  of  contingencies  by  operation  of  law— Rule  of  Challis  v.  Doe.  686 

Title  VII. 

APPLICATION    OF   THE    RULE    OF   DESTRUCTIBILITY    OF    CONTINGENT    REMAINDERS 
TO  PREVENT  THE  VIOLATION  OF  THE  RULE  .U5AINST  PERPETUITIES. 

T   ^     ,     ,„  687 

Introductory     

Suppose  the  legal  contingent  remainder  is  limited  to  a  class 688 

Supppose  the  future  interest  is  one  wliich  may  take  effect  as  a  remainder 

or  as  a  shifting  interest 

xlix 


CONTENTS 
Title  VIII. 

POWERS. 

Sec. 
Powers  void   in   their   creation   because   they   may   be   exercised   at   too 

remote  a  time  ' 690 

Invalidity  for  remoteness  in  the  exercise  of  a  valid  power 691 

where  the  power  is  special ' 691 

where  the  power  is  general  to  appoint  by  deed  or  will 692 

where  the  power  is  to  appoint  by  will  only,  but  is  as  general  as 

such  a  power  can  possibly  be 693 

problem    stated 693 

the  eases  are  in  conflict 694 

solution  of  the  problem  on  principle , 695 

Title  IX. 

LIMITATIONS    AFTER    AN    ESTATE    TAIL. 

Validity  of  such  limitations 696 

Title  X, 

CHARITIES. 

Trust  for  charitable  purposes  not  void  for  remoteness  though  the  trust 
must  last  indefinitely 697 

Where  a  charitable  bequest  is  to  a  corporation  or  association  not  yet 
formed   698 

Title  XI. 

accumulations. 

Topic  1. 

apart  from  the  statute  on  accumulations. 

Accumulations  other  than  for  charity 699 

Accumulation  for  charitable  purposes 700 

Topic  2. 

the  statute  on  accumulations. 

The  Thellussou  Act  re-enacted  in  Illinois 701 

Title  XII. 

CONSTRUCTION. 
Attitude  of  the  court  in  handling  questions  of  construction  which  must 

be  determined  before  the  Rule  is  applied 702 

Modifying  clauses 703 

Title  XIII, 

ESTOPPEL    AND   ELECTION. 

One  who  has  received  an  interest  devised  by  a  will  is  not  precluded  from 
attacking  the  provisions  of  the  same  will  on  the  ground  that  they 
violate  the  Rule  against  Perpetuities 704 

1 


CONTENTS 

Title  XIV. 

eki-ect  ok  j-'ailuke  of  some  limitations  kor  remoteness  on  others. 

Topic  ]. 

effect  on  prior  limitations  not  too  remote  when  subsequent  limita- 
tions fail  for  remoteness. 

Sec. 
General  rule  as  stated  by  our  Supreme  Court  in  Barrett  v.  Barrett.  ..  .   705 
Cases  where   the  court  held   tliat  the   limitations   not  void   for  remote- 
ness should  be  enforced   _ 706 

Cases  where  the  valid  portions  of  the  will  failed  along  with  the  invalid.  707 

Summary  of  conclusions  from  the  cases 708 

Gray 's  statement  in  his  Rule  against  Perpetuities 709 

Topic  2. 

effect  on   subsequent  limitations    when    prior   limitations   are  void 

for  remoteness. 

The  rule  of  Monypenny  v.  Dering 710 


BOOK  V 

ILLEGAL  CONDITIONS  AND  RESTRAINTS 
ON  ALIENATION 


CHAPTER  XXVII. 

FORFEITURE  AND  RESTRAINTS  ON  ALIENATION. 

Forfeiture  on  alienation  distinguished  from  restraints  on  alienation.  . .  .   711 

Title  I. 
forfeiture  on  alienation. 
Topic  1. 

OF  A   fee  simple  ABSOLUTE   OR   AN   INTEREST   IN   PERSONALTY. 

Where  the  fee  simple  or  absolute  interest  is  in  possession 712 

Forfeiture  upon  alienation  of  future  interests 713 

Topic  2. 

of  estates  for  life  or  for  years. 

Forfeiture  upon  the  alienation  of  a  life  estate.  .  .' 714 

Forfeiture  upon  the  alienation  of  a  term  for  years 715 

Topic  3. 
of  an  estj\te  tail  or  the  statutory  estates  in  place  thereof. 

Forfeiture  upon  the  alienation  of  an  estate  tail 716 

li 


CONTENTS 

Title  II. 

forfeiture  on  failure  to  alienate gifts  over  on  intestacy. 

Topic  1. 

where  the  first  taker  has  a  fee  or  absolute  interest. 

Sec. 

Introductory — Typical  cases  stated  for  consideration 717 

Consideration  of  eases  3  and  3a 718 

Cases  2  and  2a 719 

Case  1 — Gifts  over  on  intestacy 720 

result  of  the  authorities 720 

excuse  for  reconsidering  the  authorities  upon  principle 721 

reasons  for  holding  void  gifts  over  on  intestacy 722 

of   personal   property 722 

of  real  estate  723 

Case  la — Gifts  over  on  intestacy  and  failure  of  issue 724 

on  principle  the  gift  over  should  be  held  valid  even  though  the  gift 

over  on  intestacy  be  held  void 724 

state  of  the  authorities 725 

Topic  2. 
where  the  first  taker  has  only  a  life  estate. 

Gifts  in  default  of  the  exercise  of  a  life  tenant's  power  of  disposi- 
tion or  appointment  are  valid 726 

Title   III. 

RESTRAINTS  ON  THE  ALIENATION   OF  A  PEE   SIMPLE  OR  ABSOLUTE  INTEREST  IN 

PERSONALTY.  ^ 

Restraints  on  the  alienation  of  a  legal  estate  in  fee  or  an  absolute  in- 
terest in  personal  property 727 

Where  the  interests  are  equitable  there  are  serious  difficulties  in  effect- 
ing an  involuntary  alienation,  even  where  no  express  restraints  on 
alienation  are  imposed  728 

By  an  extension  of  the  Rule  of  Claflin  v.  Claflin  which  permits  the  crea- 
tion of  indestructible  trusts  of  absolute  and  indefeasible  interests, 
restraints  on  alienation  during  the  time  the  trust  remains  inde- 
structible have  also  been  permitted 729 

Title  IV. 

RESTRAINTS   ON  THE   ALIENATION  OP  ESTATES   FOR  LIFE  OR  FOR  YEARS. 

Restraints  on  alienation  of  a  life  estate 730 

when  the  interest  is  legal 730 

where  the  life  interest  is  equitable 731 

lii 


CONTENTS 

Title  V. 
indestructible  trusts  op  absolute  and  indefeasible  equitable  interests. 

Topic  ]. 

taken  by  themselves  and  considered  separately  from  any  restraints 

on  alienation  tiiey  are  valid  provided  they  are  properly 

limited  in  time. 

Sec. 

The  doctrine  of  Claflin  v.  Claflin 732 

how  far  reeojinized  in  this  State 732 

how  far  sound  on   princii)lo 733 

the  authorities  at  larj;e 733 

reasoning  of  the  English  cases 734 

the  reason  of  repugancy  unsound 735 

reasoning  based  upon  public  policy 7;'>G 

preliminary    736 

tlie  duration  of  the  postponement  must  be  limited  in  time.  737 

consideration  of  the  precise  issue  involved 738 

Topic  2. 

A    holding,    however,   THAT   RESTRAINTS   ON    ALIENATION     (ATTACHED   TO   THE 

ABSOLUTE  AND  INDEFEASIBLE   EQUITABLE  INTEREST  WHILE  THE  TRUST 

REMAINS   INDESTRUCTIBLE)    ARE  V.VI.TD,   IS   INDEFENSIBLE. 

Such  a  holding  has  been  made  in  Massachusetts  and  Illinois 739 

The  i)Osition  of  the  court  in  the  above  cases  is  inconsistent  with  deci- 
sions already  made  and  adhered   to,  and  contrary  to  the  weight  of 

authority    740 

It  is  contrary  to  public  policy 741 

Title  VI. 

CONSTRUCTION — WHAT    WORDS     ARE     SUFFICIENT    TO     CREATE     RESTRAINTS     ON 
ALIENATION    OR   A    SO-CALLED    SPENDTHRIFT   TRUST. 

Introductory    '  ■*- 

Bennett  v.  Bennett 743 

Wagner  v.  Wagner 744 

Wallace  v.  Foxwell 745 

O  'Hare  v.  Johnston 746 

Hopkiuson  v.  Swaim  and  Neweomb  v.  Masters 747 

Oonclusidii    748 

CHAPTER  XXVIII. 
ILLEGAL  AND  IMPOSSIBLE  CONDITIONS, 

When  the  condition  is  subst^quent  and  impossible  of  fulfillment  or  illegal  749 
Where  the  condition  is  precedent  and  illegal  or  impossible 750 

liii 


CONTENTS 

Sec. 

What  conditions  arc  illeo:al 751 

conditions  in  restraint  of  marriage 7G1 

conditions  to  induce  husband  and  wife  to  live  apart  or  get  a  divorce.  752 

THE   AUTHOR'S   ARTICLES   PUBLISHED   IN   VARIOUS   REVIEWS 
AND  USED  WHOLLY  OR  IN  PART  IN  THE  PREP- 
\  ARATION  OF  THIS  WORK: 

INTERPRETATION : 

Considerations  Preliminary  to  the  Practice  of  the  Art  of  In- 
terpreting Writings,  28  Yale  Law  Journal,  33.  J§  122-133,  142,  143 
ESTATES  CREATED: 

Estates  Created,  2  Illinois  Law  Bulletin,  3 §§  153-215 

Estate  Which  a  Trustee  Takes,  6  Illinois  Law  Review,  549.  .§§  183  193 
Implication  of  Life  Estates,  Distributive  Construction   and 
Disposition   of   Intermediate    Income,    10    Michigan    Law 

Review,   509    §§  204-209 

RIGHT  OF  ENTRY  FOR  CONDITION  BROKEN : 

Effect   of  Words   of   Condition   in   a   Deed,   3   Illinois   Law 

Review,  280 §§  219-225 

CLASSIFICATION  OF  FUTURE  INTERESTS,  REVERSIONS 
AND  REMAINDERS,  CONTINGENT  REMAINDERS,  AND 
DISTINCTION  BETWEEN  VESTED  AND  CONTINGENT 
REMAINDERS: 

Contingent  Future  Interests  After  a  Particular  Estate  of 

Freehold,  21  Law  Quarterly  Review,  118 

Future  Interests  in  Land,  22  Law  Quarterly  Review,  250,  383. 
Vested  and  Contingent  Remainders,  8  Columbia  Law  Review, 

245    

A  Modern  Dialogue  Between  Doctor  and  Student  on  the  Dis- 
tinction  Betwen   Vested   aJid   Contingent   Remainders,   24 

Law  Quarterly  Review,  301 

Vested  and  Contingent  Future  Interests  in  Illinois,  2  Illinois 

Law  Review,  301 

Distinction  Between  Vested  and   Contingent  Remainders  in 

Illinois,  8  Illinois  Law  Review,  225 §§  357-368 

The  Later  History  of  the  Rule  of  Destructibility  .of  Contin- 
gent Remainders,  28  Yale  Law  Journal,  656 §§     96-106 

Adverse    Possession    Against   Future    Interests,    14    Illinois' 

Law  Review,  124 §§  383-397 

STATUTORY  ESTATES  IN  PLACE  OF  ESTATES  TAIL: 

Statutory  Estates  in  Place  of  Estates  Tail,  13  Yale  Law 
Journal,  267    - 

RULE  IN  SHELLEY'S  CASE: 

Application  of  the  Rule  in  Shelley's  Case  Where  the  Limita- 
tions are  Equitable  or  Where  There  is  an  Executory  In- 
terest, 8  Illinois  Law  Review,  153 §§  429^33 

liv 


CONTENTS 


Sec. 


Application  of  tlie  Rule  in  Shelley's  Case  Where  "Heirs" 
in  a  Remainder  to  the  Heirs  is  Used  as  a  Word  of  Pur- 
ehase  and  not  as  a  Word  of  Limitation,  28  Law  Quar- 
terly  Review,   148 §§  421-428 

The   Rule   in   ShelK<y  's   Case  Does   Not   Apply   to   Personal 

Property,  4  Illinois  Law  Review,  639 §§  434-4.'59 

SPECIAL  PROBLEMS  OF  CONSTRUCTION: 

Meaning  of  the  Word  "Issue"  in  Gifts  to  "Issue,"  6  Illi- 
nois Law  Review,  217 §§  575-583 

Rights  of  Adopted  Children,  9  Illinois  Law  Review,  149 §§  584-595 

POWERS: 

Survival  of  Powers,  G  Illinois  Law  Review,  448 §$  624-633 

Power  in  Trustees  to  Make  Leases,  7  Illinois  Law  Review, 

428    §§  645-646 

Power  of  Life  Tenant  to  Dispose  of  the  Fee,  7  Illinois  Law 

Review,  504   §§  648-649 

RULE  AGAINST  PERPETUITIES: 

How  Far  Interests  Limited  to  Take  Effect  "When  Debts  are 
Paid,"  or  "An  Estate  Settled,"  or  "A  Trust  Executed 
and  Performed,"  are  Void  for  Remoteness,  6  Illinois  Law 
Review,  373     §§  666-675 

Vested  Gifts  to  a  Class  and  the  Rule  Against  Perpetuities, 
19  Harvard  Law  Review,  598 

Several  Problems  of  Gray's  Rule  Against  Perpetuities,  2nd. 
ed.,  20  Harvard  Law  Review,  192 

General  Powers  aiul  the  Rule  Against  Perpetuities,  26  Har- 
vard Law  Review,  664 §§  690-695 

MISCELLANEOUS: 

The  Will  of  an  English  Gentleman  of  Moderate  Fortune,  19 
Green  Bag,  214    

Reforms  in  the  Law  of  Future  Interests  Needed  in  Illinois, 
1  Illinois  Law  Review,  311 


Iv 


TABLE  OF  CASES 


Note. — Cases  marked  with  an  asterisk  are  reprinted  in  the  author  's  Cases 
on  Future  Interests. 


Abbott  V.  Abbott..444,  449,  461, 

Abbott  V.  Essex    Co 

Abbott  V.  Hoi  way    458, 

Abbott  V.  Jenkins     »  .  .  . 

99,   106,   309,   312, 

Abel's  Case   34, 

Abend  v.  Endowment  Fund.  .  .  . 

Abrahams  v.  Sanders 141, 

Abrams  v.  Watson 

Ackers  v.  Phipps 208, 

Ackland  v.  Lutley 187,  192, 

Ackless   V.  Scekriglit 

157,  445,  467,  471,  479, 

Adams  v.  Guerard 

*Adams  v.  Sava}j;e 80,  452, 

Adams  v.   Valentine 222, 

Addicks  v.   Addit'ks 

Adshead  v.  Willotts 

*Aetna  Life  Ins.  Co.  v.  Hoppin 

309,  321,  359,  406,  412,  418, 

420,  421,  423,  424,  427, 

Ahlfield    V.    Curtis 

164,   420,  467,   470, 

Aiton  V.  Brooks 

Akers  v.  Clark... 176,  305,  412, 

Aldborough  v.  Trye 

Alexander  v.  Masonic  Aid  Ass'n 

Alford  V.  Bennett 

AUardt  v.  People 

Allen  V.  McFarland..  .303,  307, 

Allen  V.   Markle 

Allen   V.    Tobias 

Allen   V.  Watts 

Allison    V.    Allison 


Sec.  Sec. 

462       Allison  v.  White 384 

164       Aloe  V.  Lowe 

465  161,  166,  301,  467,  470,  484 

Alton   V.   Fishback 292 

358       Ambrose  v.  Root 266,  276 

423  Anu'rican  Bible  Society  v.  Price  400 

697  Am(Mican  Express  Co.  v.  Pinck- 

534  ney     181 

282       Anus  v.  Ames 69,  190 

209       Ames  v.  Smith 533 

645       Anderson  v.  Anderson 196 

Anderson   v.  Meiiefee 500,  513 

720       Anderson  v.  Smith 32:'. 

67       Anderson  v.  Stewart 178 

465       .Anderson   v.  Williams 574,  657 

22."'.       Andrew  v.   Andrew 486 

601       Andrews  v.  Andrews 

171  468.   656,   697,  698 

Andrews  v.  Lincoln 500,  513 

Andrews   v.   Eoye 724 

428       Anproll,    Petitioner 431 

.Vnpell    V.    Rosenbury 193 

552       Angus   v.    Noble 660 

604       Annable  v.  Patch 566 

723  Aunin's    Ex 'rs    v.    Vandorcn's 

370  Adm  'r   719 

573  Anonymous     (Bro.     N.     C.     by 

137  March,  89)    66 

291       Anonymous  (Cro.  El.  46) 65 

732  *  Anonymous   (2  Haywood  161) 

196  108,  487 

259       Anonymous   (Jenk.   190) 50.     53 

503       *Anonynious    (March,  106) 107 

573       .Vnonymous  (Moore,  554) 399 

Ivii 


TABLE  OF   CASES 


Sec. 
•Archer  'a  Case   

77,  81,  85,  97,  309,  421,  423, 

425,   427,  428 

Archer  v.  Brockschniidt 

421,    42;'.,  424 

Archer  v.   Jacobs 

101,  103,   104,   106,  311 

*  Armstrong:  v.   Barber 

499,  500,  509,  510,  512,  516, 
518,  523,  527,  528,   657,  659, 

660,   673 

*Armstrong  v.  Eldridge 600 

Armstrong  v.  Wholesey 58 

Arnold   v.   Alden 

472,  528,  531,  544,  545,  574,  575 

Arnold's   Trusts,   In   re 603 

Ashby    V.    McKinlock 

467,  470,  531,  720 

Ashelford  v.   Willis 64 

*Ashforth's  Trusts,  In  re 662 

Ashland,  Village  of,  v,  Greiner  220 

*  Ashley  v.   Ashley 600 

*Ashmore's  Trusts,  In  re 513 

Ashton  's   Estate,   Ke 573 

Askew  V.  Askew 602 

Askins   v.    Merritt 

301,  398,  467,  470,  727 

Aspinall  v.  Petrin 205,  206 

*Astley  V.  Micktethwait..88,  99,  316 

Atherton  v.  Roche 404 

Atkinson  v.  L 'Estrange 435 

Atkinson    v.   Lester 261,  268 

Attorney-General     v.     Bracken- 
bury     641 

Atty.  General  v.  Corporation  of 

Southmolton    222 

Attorney  General  v.  Gleg 626 

Attorney  General  v.  Hall..  199,  719 
Attorney  General  v.  Merrimack 

Mfg.  Co 219 

Attorney  General  v.  Wax  Chan- 
dlers  Co 222 

*Attwater  v.  Att water 206,  712 

*Atwaters  v.  Birt 6177  627 

Auburn,  Village  of,  V.  Goodwin.   292 

Auger  V.  Tatham 571 

Augusta,  Village  of,   v.  Tyner.   292 


Sec. 

Austin   V.   Bristol 575 

Austin  V.  Canibridgeport  Parish  219 

Avery  v.  Avery 678,  733 

Avery  v.  N.  Y.  Cen.  R.  E.  Co.  .   225 

Avery  v.  United  States 220 

Ayer  v.  Ritter 69,  190 

Ayers  v.  Chicago  Title  &  Trust 

Co 170,  401,   571,  §72 

Ayres  v.  Clinefelter 619,  630 

Ayling  v.   Kramer 225 

Aylesf ord  v.  Morris 370 

Bacon,    In    re 626 

Bacon 's  Appeal    

69,   189,   190,  192,  645 

Bacon  y.  Proctor.  . 669 

Badger   v.    Gregory 602 

Bagshaw  v.  Spencer 89,  429,  430 

Bails  V.  Davis 412,  417,  440 

Bain  ton   v.  Ward 638 

Baker   v.    Baker 196 

Baker  v.   Brown 740 

Baker  v.  Hays 258 

Baker   v.   Oakwood 385,  392 

Baker   v.   Parson 187,   192,  645 

Baker  v.   Scott 

1.58,  184,  412,  413,  415,  418, 

419,  429,  430,  440,  441,  453 

Baker   v.   White 187 

Balch  V.  Johnson 584 

Balch    V.    Pickering 603 

Ball  V.  Peck 252 

Ballance  v.  Fortier 233,  245 

Banta  v.   Boyd 

472,  499,   505,  520,  526 

Baldrige  v.  Coffey 647 

Barclay  v.  Piatt.. 69,  169,  307,  308 

Barger   v.   Hobbs 64 

Barker 's  Estate    678 

Barker  v.  Barrons 220 

Barker  v.  Keete 61,  65,  4.56 

Barnardiston  v.  Lingood 370 

Barnes   v.   Allen 324 

Barnes  v.  Gunter 393 

Barnes  v.  Johnston 

.507,  520,  526,  534 

Barnes  v.  Northern  Trust  Co.. 

241,  379 

Barnet  v.  Barnet 205 


Iviii 


tabIjE  of  cases 


Sec. 

Barnitz  v.  Casey 380 

Barr  v.  Gardner 

99,  106,  309,  310,  338 

*Barrett    v.   Barrett 

705,  706,  707,  708 

Barrett  v.  Hinckley.  .  .  .6->,  217,  230 

Bartlett,  Petitioner    678 

Bartlow  v.  C.  B.  &  G.  R.  Co 384 

Barton  v.  Barton 494,  650 

Barton  v.  Briscoe 611 

Bashore  v.  Mackenzie 648 

Bassett   v.   Wells 575,  577 

Bastard  v.  Proby 433 

Bates  V.  Gillett 

173,  174,   196,  303,  324,  330, 

504,  506,  563,  565.  575 

Bates   V.   Schraeder 380 

Bates  V.  Spooner 669 

Bates  V.  Winifrede  Coal  Co 193 

Battersby's  Trusts,  In  re 579 

Batterton  v.  Yoakum 202 

Bauer  v.  Lumaghi  Coal  Co. 664,  665 

Baulos  v.   Ash 178,  197 

Bauman   v.    Stoller 

162,  164,  165,  462 

Bawtree  v.  Watson 370 

Bayley  v.  Bishop 503 

Bayley  v.   Morris 309 

Beacroft  v.  Strawn 414,  562 

Beattie   v.   Mair 262 

Bechdoldt    v.   Bechdoldt 384 

BecTf  's  Trusts,  In  re 603 

Becker  v.  Becker 301,  467,  751 

Beckwith  v.  Bockwith 603 

Beddall   v.   Maitland 262 

Beeson   v.   Burton 20,  201 

Belding   v.   Parsons 

99,  106,  309,  310,  311 

Belfast  Town  Council,  In  re...   343 

*Belfield   v.   Booth 674 

Beiinski   v.    Brand 254 

Bell  V.  Bnihn 238,  249,  252 

Belmont  v.  0  'Brien 626 

Belslay  v.  Engel 414,  441 

Bence,   In  re 410,  686 

Benn,  In  re 603 


See. 

*Bennett   v.   Bennett 

430,  436,  438,  500,  501,  512, 
516,  522,  525,  526,  527,  731, 

732,   740,  743 

Bennett  v.  Morris 106,  309,  311 

Benson    v.    Tanner 

95,  99,  106,  306,  309,  310,  311, 

319,    412,  428 

Bergan  v.  Cahill 

162,  168,  717,  726 

Bergengren  v.   Aldrich 

192,    645,  646 

Bergman  v.   Arnhold..l89,   191,  332 

Berny  v.  Pitt 370 

Berridge    v.    Glassey 181 

Berrien  v.  Berrien 628 

Berry  v.  Williamson 433 

Berwyn,  City  of,  v.  Berglund..   300 

Betz  V.  Furling 347,  398,  524 

Berans  v.  Murray 641,  649 

Bewick,  In  re,  Kyle  v.  Ryle 674 

*BeyfHs  V.  Lawley 612 

Bigelow  V.  Cady 

412,  596,  621,  653,  656,  658, 

659,    661,    663,  678 

Biggerstaff   v.   Van   Pelt 

.!" 304,   379,  723 

*Bilham,    In   re 607 

Billings   V.   People 401 

Bingel  v.  Volz 135,  137,  138 

Binns  V.  La  Forge 69,  728,  731 

Bird   V.   Hunsdon 205 

Bird  V.  Luckie 572 

Birdsall  v.   York 575,  578 

Birmingham  Canal  Co.  v.  Cart- 
wright     665 

Bishop  V.  Davenport 374 

Bishop  V.  Morgan 135,  137 

Bishop  V.  Remple 648 

Black  V.  Jones 574 

Black  V.  Ligon 645 

Blackman    v.    Fysh 

99,  101,  104,  442 

Blackmore  v.  Boardman 665 

Blackstone  v.  Althouse 

158,  352,  353,  467,  470,  479, 
.  .480,  483,  524,  531,  546,  556,  563 
Blackwell  v.  Bull 205 


lix 


TABLE  OF   CASES 


Blair  v.  Cair 

Blair   v.   Johnson 

Blair   v.   Vanblarcuin 196, 

Blakcley  v.  Mansfield 

99,  106,  309,  310,  319,  338, 
541,    546, 

*Blanchard  v.  Blanchard 

Blanchard  v.  Brooks 

Blanchard  v.  Detroit,  Lansing 
&  Lake  Michigan  K.  E.  Co.  . 
222, 

Bland  v.  Bland 

Bland  v.  Williams 

*Blasson  v.   Blasson 

Blanchard   v.   Maynard 

207,  472,  482, 

Blatchf ord  v.  Newberry 

123,  472,  528,  563,  565, 

Blinn  v.   Gillett 

Blodgett  V.  Stowell 590, 

Bloomington   v.   Brophy 

Boatman  v.  Boatman 

307,  308,  309,  320,  358,  365, 
367,  378,  444, 

Board  of  Education  v.  Trustees 
220,   240,  243,  244, 

Boehm  v.  Baldwin 561, 

Bolles  V.  Smith 

*Bond  V.  Moore 

99,  106,  123,  151,  164,  309, 
310,  311,  318,  319,  359,  363, 
539,   572, 

Bond  V.  0  'Gara 

Bonner  v.  Bonner. 421,  423,  424, 

Boon  V.  Cornf orth 

Boone  v.  Clark 

Boosey  v.  Gradner 

*Booth  V.  Booth 

Boothby  v.  Boothhy 

Boraston  's  Case 309, 

Bordereaux  v.  Walker 

*Boston  Safe  Deposit  &  Trust 
Co.  V.  Collier 729, 

Boston  Safe  Deposit  Co.  v. 
Mixter    

Bourne,  In  re 99,  102, 

Bowen  v.  Allen 135,  136, 

Bowen  v.  Humphreys 


Sec.  Sec. 

293       Bowen  v,  John 159,  162,  727 

383       Bowerman  v.   Sessel 

411  168,  202,  499,  648,  649,  722,  723 

Bowers  v.  Smith 704 

Bowes  V.  Heaps 370 

551       Bowler  v.  Bowler 330,  465,  466 

327       Bowlin  v.  White 406 

309       Bowman,  In  re 603 

Boyd   V.  Broadwell 504,  505 

Boyd  V.  Fraternity  Hall  Ass  'n. .   227 

225      Boyd  v.  Strahan 

574  108,  168,  202,  490,  648 

519       Boyer  v.  Allen 648 

326       Boyes  v.  Cook 641 

Boykin  v.  Ancrum 392 

528       Boynton  v.  Hubbard 370 

Brackenbury  v.  Gibbons 102 

599       Bradford  v.  Monks 626 

151       Bradley  v.  Jenkins..  .  .162,  168,  726 

593       Bradly  v.  Westcott 648 

260       Bradsy  v.  Wallace 

164,  301,  467,  531,  552,  574 

*Bradshaw,    In    re 612 

482       Brandenburg  v.   Thorndike 674 

*Brandon  v.  Robinson 731 

662       Branson  v.  Bailey 531,  656,  657 

562       *Brant  v.  Virginia  Coal  &  Iron 
556  Co 648 

Brantley  v.  Porter 187 

Brasher  v.   Marsh 173 

Brassey  v.   Chalmers 628 

577       *Bray  v.  Bree 665,  690 

383       Bray  v.  Miles 585,  588,  594 

425       Breckbeller  v.  Wilson 

205  173,  328,  338,  345,  351,  358 

240       Bredenburg  v.  Bardin 628 

160       Breit  v.  Yeaton 639,  644 

516       Brenchley  v.  Higgins 370 

370       Brenock  v.   Brenock 164,  531 

334       Brewick  v.   Anderson 

379  351,  353,  524,  563 

Brian  v.  Melton 395 

739       Brislain  v.  Wilson 412,  440 

Britton  v.  Miller 566 

191       Brokaw  v.  Ogle 308 

104       Bromley   v.   Wright 503 

137       Brooke  v.   0  'Boyle 268,  272 

67       Bromfield  v.   Crowder 333 

Ix 


TABLE   OF    CASES 


Sec. 

Broughton  v.  Langlcy 05 

Brown  V.  Brown   (247  111.  528) 

303,  307,  308,  330,  462,  597,  6.54 
Brown  v.  Brown  (253  111.  466)  572 
Brown  v.  Bryant.. 421,  423,  424,  425 
Brown  v.  Chicago  &  N.  W.  Ry. 

Co 222,  225 

*Brown  v.  Higgs 635 

Brown  v.  Kamerer 303 

Brown   v.   Keller 233 

Brown   v.    Miner 643 

Brown  v.  Peek 750 

Brown  v.   Smith 265 

Brown  v.   Tilley 219 

Brown  v.  Wadsworth.  .187,  192,  645 

Brown    v.   Williams 324 

Brownbat'k  v.  Keister 350,  354 

Browne   v.   Browiie 99,  336 

Brownfield  v.  Wilson 161,  177 

Bruce  v.  Charlton 500 

Brummell  v.  Macpherson 279 

♦Brummet  v.  Barber 108,  487 

Bryan  v.  Spires 552 

Buck  V.  Garber 164,  531 

Buck  V.  Lantz ^80 

Buckingham   v.   Morrison 

485,  486,  492,  493 

Bueklin   v.   Creighton 431,438 

Buekworth    v.    Thirkell 

465,  484,  520 

Bull  V.  Pritchard 99,  336 

Bullard  v.  Goffe 417 

Biillook  V.  Stones 208 

Burbaeh  v.  Burbach 69,  189 

Burden  v.  Thayer 43 

Burges  v.  Thompson 421,  424 

Burke  v.  Burke 660,  726 

Burlet  V.  Burlet 158 

Burnett  v.  Lester 

485,  486,  493,  494 

Burney  v.  Arnold 350,  354 

Burris  v.  Page 359,  409 

*Burrows,    In    re,    Cleghoni    v. 

Burrows    326 

*Burrough  v.  Phileox 636 

Btirt  V.  French 237,  248 


Sec. 

Burton   v.   Gagnon 

168,  364,  398,  400,  482,  550, 

572,   721,  725 

Bush  V.  Hamill.  .  .1S7,   :^'0,  334,  398 

Butcher  v.   Leach 513 

Butler  V.  Huestis 

195,  359,  360,  405,  406,  414, 
418,  421,  423,  424,  428,  441, 

610,   648,  649 

Butterfield  v.  Butterfield. .  .199,  437 

Butterfield   v.   Sawyer 

123,  307,  320,  571,  585,  586, 

594,  .595 

Byam  v.  Byam 626 

Byars  v.  Spencer 390 

Byrnes  v.  Stilwell 330 

*Cadell  V.  Palmer 116 

Calef  V.  Parsons.  .463,  464,  465,  466 
Callard  v.  Callard.  .63,  307,  4.53,  464 

Callison  v.  Morris 327 

Cameron,  In  re 734 

Canal  Trustees  v.  Haven 284 

Caraher  v.  Lloyd 95,  320a 

Carberry  v.  McCarthy 637 

*Carpenter  v.   Hubbard 

416,  428,  429,  440,  571,  572,  703 
Carpenter    v.    Sangamon    Trust 

Co 163,  164,  165,  531 

Carpenter  v.  Van  Olinder 

412,  414,  440,  441,  574,  727 

Carper  v.  Crowl 497,  503 

Carrigan  v.  Drake 431 

Carroll  v.  Ballance 217 

Carroll   v.   Burns 

421,  423,  424,  425 

Carson  v.    New  Bellevue   Ceme- 
tery  Co 322 

Carter  v.  Bloodgood's  Exr's...   602 
Carter  V.  Carter.  .307,  308,  3.34,  353 

Cartledge,    Re 500 

Caruthers    v.    McNeill 472 

Carwardine  v.  Carwardino 97 

Cary  's  Estate,  In  re 604 

Gary  v.  Slead 69,  190,  528 

*Cashman,     In     re     Estate     of 

168,  485,  492,  648,  649,  726 

Casey   v.    Canavan 643 

Cassem  v.  Kennedy.  .  .467,  481,  500 

Ixi 


TABLE  OF   CASES 


Sec, 

Cassem  v.  Prindle 384 

Cassidy  v.  Mason 220 

*Casterton  v.  Sutherland 636 

Castner  v.  Walrod 388 

Catlin  Coal  Co.  v.  Lloyd 64 

Central  Land  Co.  v.  Laidley 384 

•Chadock  v.  Cowley 544 

Chadwiek  v.  Parker 

.  .23*6,  237,  243,  245,  246,  247,  248 
•Chamberlain  v.  Hutchinson...   695 

Chamberlain  v.  Maynes 69 

Chambers  v.   Brailsford 208 

Chambers  v.   Tulane 630 

Chandler  v.  Eider 631 

*Chandos  v.  Talbot 497 

Channel  v.   Merrifield 280 

Chapin  v.  Crow 

167,  329,  340,  358,  528,  533 

Chapin   v.   Nott 

303,  307,  309,  324,  358,  366, 

367,    444,  482 

Chapman  v.  Cawrey 264 

Chapman  v.  Cheney 

,    329,  350,  354,  485,  499,  522, 
527,  563,  652,  678,  706,  707, 

708,   732 

Chapman  v.  Kirby 245,  247,  253 

Chapman  v.   Pingree 222 

Chapman  v.  Wright 245 

Charter   v.   Charter 128 

Chase  v.  Ladd 648 

Chase  v.  Peckham 554 

Cheney  v.  Bonnell 245,  251 

Cheney  v.  Teese 

330,  528,  563,  565,  601 

Cherry  v.  Greene 643 

Chess 's  Appeal  324 

Chicago  V.  Chicago  &  W.  I.  E. 

E.  Co 280,  749 

Chicago  V.  Middlebrooke 319 

Chicago  V.  Eumsey 297,  298 

Chicago      Attachment      Co.      v. 

Davis  Sewing  Machine  Co..  .  .   243 
Chicago,  P.  &  St.  L.  E.  Co.  v. 

Vaughn  383,  384 

Chicago    Term.    E.    E.    Co.    v. 
Winslow    69 


Sec. 
Chicago   &   W.  T.   E.   E.   Co.   v. 

Slee    272,  273 

*Child  V.  Baylie 109,  114,  115 

Chiles  V.  Stephens 258 

Christie  v.  Gosling 433 

Christy  v.  Ogle 730,  740 

Christy  v.  Pulliam 

467,  610,   641,  648,  649,  730,  740 

^Chudleigh's    Case 77,     97 

*ClaHin  v.  Claflin 

.  .526,  568,  658,  678,  729,  732,  739 

Clancy  v.  Clancy 135,  137,  138 

Clark  V.  Clark 467,  610,  644 

Clark  V.  Cox. 324 

Clark  V.  MeCormick 292 

Clark  V.  Middlesworth 648 

Clark  V.  Neves. .  .421,  423,  424,  425 

Clark  V.  Shawen 

308,  500,  503,  528,  571,  572 

Clarkson  v.  Hatton 584,  585,  595 

Clay,  etc.,  v.  Clay 573 

Clay  V.  Hart 630 

Clemens  v.  Heckscher 199,  437 

*Clere  's  Case 641 

Gierke  v.  Day 421 

Cleveland  v.   Havens 200 

Clifford  V.  Clifford 641 

Clifford   V.   Davis 493 

Clinefelter  v.   Ayres 619,  630 

*Clobberie  's  Case 512 

Close  V.  Burlington,  etc.,  E.  E. 

Co 220 

Coat's    Ex'r    v.    Louisville    & 

Nashville  E.  E.  Co 648 

*Coates  V.  Burton 577,  582 

Coates  Street 320a,  481 

Cochran  v.  Cochran 585 

Cockins  and  Harper,  Appeal  of  438 

Cofkshott  V.  Cockshott 205 

*CoflQn  V.  Cooper 612 

Coffing  V.   Taylor 641 

Cole  V.  Bentley 453 

Cole  V.  Sewell 97,  602 

Cole  V.  Wade 626 

*Coleman,  In  re 731 

Coleman  v.  Coleman 403 

Coleman  v.  Connolly 617 

Collier  v.   Grimesey 499 


Ixii 


TABLE  OF    CA8BS 


Sec. 

Collier   v.   Walters 192,  645 

CoUins  V.  Brackett 220 

Collins  V.  Cappa l."??,  138 

Collins  V.   MacTavish 645 

Collins  V.  Sanitary  Di8trict..303,  309 

Collins  V.  Smith 382 

Colmore  v.   Tyndali 193 

Commonwealth  v.  Nancrede.  . .  .   585 

Compton  V.  McMahan 628 

Comstock  V,  Brosseau.  .265,  267,  268 

Comstock  V.  Redmonil 657 

Cone  V.  Woodward 247,  248 

Congress  Constr.  Co.  v.   Farson 

Co 160 

Congreve  v.  Palmer 579 

Conklin    v.    Egerton 's    Admr.. 

628,   631 

Conkling  v.  City  of  Springfield.   463 

Connelly   v.    O'Brien 357,  358 

Conn.  Trust  &  Safe  Dep,  Co.  v. 

Hollister    678,  733 

Conner  v.  Johnson 353 

Connor  v.  Gardner 

151,   160,  169,  562 

Consolidated       Coal       Co.       v. 

Schaefer     252 

Coogan  V.  Jones.  .179,  180,  195,  197 

Cook  V.  Cook 474,  575,  577 

Cook  V.  Councilman 421 

Cook  V.  Gerrard 206 

Cook  V.  Hammond 381 

Cook 's  Estate   599 

Cooke  V.  Blake 187,  192,  645 

Cooke's  Contract,  In  re 626 

Cooper    V.    Cooper     (7    Houst. 

(Del.)  488)    602 

Cooper   V.   Cooper    (76   111.   57) 
177,  178,   197,  213,  405,  407, 

.- 418,  476,  726 

Cooper  V.  Franklin 66 

Cooper  V.  Gum 221 

Coover  's  Appeal   599 

Corbet 's  Case  70 

Corbett  v.  Laurens 575,  577 

Corbett  's    Trust,    Re 604 

Corbin  v.  Healy 177,  409 

Cordal's  Case 187 

Coster  V.  Lorillard 357 


See. 

Cote 's  Appeal   381 

*Cotton  V.  Heath 109 

Coulden,   In    re 196,    200 

Coventry  v.  Coventry 566,  734 

Cover  V.  James 

162,  164,  211,  .344,  462 

Coverdale  v.  Curry 268 

Cowman  v.  Glos 202 

Cox  V.  Cunningham 233,  251 

Cox  V.  Freediey 292 

Coyle  V.  Coyle 575 

Crabtree  v.  Dwyer 414 

Craft  v.  I.  D.  &  W.  Ry.  Co 444 

Craig  v.  Warner 

99,  106,  311,  314,  358 

Crandall  v.  Sorg 255,  277 

Cranley  v.   Dixon 205 

Craven,   In   re 173 

Craven  v.  Brady 599 

Craw   v.  Craw 168,  726 

Crawford  v.  Clark : 324 

Crawford  v.  Forshaw 626 

Crawford  v.  Wearn 199,  437 

Crerar  v.  Williams 697,  698 

Cresswell,     In     re,     Parken     v. 

Cresswell    324 

Cripps   V.   Wolcott 528 

Crisficld  V.  Storr 322 

Crocker  v.  Van  Vlissingen.  .164,  531 

Croff   V.   Ballinger 261,  268 

Croft  V.  Lumley 280 

Crosby  v.  Davis 191,  192,  645 

*Crowder  v.  Stone 605 

Crozier  v.  Cundall 579 

Crozier   v.    Hoyt 

467,  610,  648,  649 

Cruikshank    v.    Home    for    the 

Friendless    ' 209 

Crum  v.  Sawyer 374 

Crump  V.  Norwood 

81,  314,  421,  424,  425 

Cumby  v.  Cumby 221 

*Cummings  v.  Hamilton 

311,  350,  354,  358,  398 

Cummings    v.    Lohr 

202,  398,  479,  481 

Cummings  v.  Shaw 648 

Cummings  v.  Stearns 324 


Ixiii 


TABLE   OF    CASES 


Sec. 

Cummins  v.  Drake 398 

Cunliffe  v.  Brancker 99,  309 

*Ciirtis  V.  Lukin 734,  736,  738 

Curtiss  V.  Brown 647 

Cusaek  v.   The  Gunning  System  282 

Gushing  v.  Blake 190,  431,  432 

Pa  Costa  v.  Keir 167 

Dakin  v.  Savage 69 

Dale  T.  Bartley 599 

Dalrymple  v.  Leach 

168,  471,  717,  720,  722 

Danne  v.  Annas 627 

Danahj  t.  Noonan 678,  732 

Daniel  v.  Crusenbury 136,  138 

Dart  T.  Dart 320a 

Daughetee  v.  Ohio  Oil  Co 203 

Davenport   v.  Coltman 206,  208 

Davenport  v.  Davenport 433 

Davenport  v.  Hanbury 575,  578 

Davenport  v.  Kirkland 485,  643 

*Davenport  v.  The  Queen 280 

Davenport  v.   Young 641 

Davenport    Bridge    Ky.    Co.    v. 

Johnson    292,  298 

Davidson  v.   Kimpton 160 

Davie   v.   Stevens 196 

Davis  T.  Christian 628 

Davis  T.   Hutchinson 712 

Davis  V.  Eipley 562,  564 

Davis  V.  Sturgeon.  158,  412,  414,  415 

Davies  v.  Moreton 282 

*Davies'  Trusts,  In  re 695 

Dawson  v.  Edwards 385 

Day  T.  Wallace 177 

Deadman  t.  Yantis 308,  398 

Dean  v.  Comstock 263,  265 

*Dean  v.  Dean 99,  688 

Dean  v.  Northern  Trust  Co. .  .  .   485 
Dearlove  v.  Herrington.  .  .  .265,  268 

Decker  v.  Decker 136,  138 

De  Costa  v.  Bischer 221 

Dee  V.  Dee.. 398,  493,  500,  503,  727 
Deemer  v.  Kessinger 

123,  412,  414,   440,  441 

Dees  V.  Cheuvronts 302,  386,  399 

Def rees  v.  Brydon 

160,  187,  301,  472,  485,  .536 

De  Ladson  v.  Crawford 738 


Sec. 

Delahay  v.  Clement 217 

Delany  v.  Delany 626 

Denegre  v.  Walker 643,  647 

Dennett  v.  Dennett 106,  311 

Denson   v.    Thompson 199,  437 

Des  Boeuf  v.  Des  Boeuf 203 

Despain  v.  Wagner 323 

De  Vaughn  v.  De  Vaughn .... 

421,  423,  424,  428 

De  Vaughn  v.  Hutchinson 

421,  423,  424,  428 

De  Vitto  V.   Harvey 202,  330 

*Dewar   v.   Brooke 510 

De  Wolf  V.  Gardiner 320a 

*Dexter  v.  Inches 

575,  581,  .582,  583 

Dick  V.  Harby.  . 628,  630 

Dick  V.   Eicker 

66,    169,   180,   195,   198,  406, 

414,  418,  476,  564 

Dickenson  v.  Holloway 380 

Dickenson  v.  Petrie 287,  249 

Dickinson    v.    Griggsville    Nat'l 

Bank 168,  485,  486,  493,  726 

Dickison  v.  Dickison 140 

Dickson  v.   Dickson 324 

Dickson    v.    New    York    Biscuit 

Co 643,    644,  648 

Dillard  v.  Dillard 626 

Dillon  V.   Faloon 648 

Dime  Savings  Co.  v.  Watson . . 
191,  500,  565,  652,  657,  702, 

707,   708 

Dimond   v.   Bostock 556 

Dingman    v.   Boyle 617 

Dinsmoor  v.   Rowse 304 

Dinwiddie   v.   Self 195,   303,  404 

Dockrill  v.  Schenk 227,  251,  280 

Dodge    V.    Wright 245 

Doe  V.  Biggs   182 

Doe    V.    Brazier 206 

Doe  V.  Cafe   192 

*Doe  V.  Chains..  105,  335,  410,  686 

Doe   V.  Considine 330 

Doe   V.   Dill    597 

Doe   V.  Edlin    69,  190 

*Doe   V.   Eyre    597 

Doe  V.   Field    69,  190 


Ixiv 


TABLE   OP    CASES 


Sec. 

Drakeloy's  Estate,  In  re 208 

Drew   V.    Killick 206 

Drew   V.   Mosharger 237,  241 

Druecker    v.    McLaughlin.  ..224,  226 
Drummond 's     Ex 'r     v.     Drum- 

mond     597 

*Diury   V.    Driiry 

:{24,  352,   3.53,  524,  563 

Diicker    v.    Burnham 

168,  308,  321,  327,  328,  330, 
.••,45,  348,  349,  353,  467,  500, 
503,  648,  669,  726 


Sec. 

*Doe   V.    Glover    719 

Doe    V.    Gregory 384 

Doe   V.    Gwillim    123 

Doe  V.  Harvey.  .  .421,  423,  424,  425 

Doe  V.  Hull    384 

*Doe    V.    Jones 611 

Doe  V.  Laming 

81,  421,   423,   424,  425 

•Doe  V.  Martin 332 

Doe    V.    Nowell 335 

Doe  V.  Passingham 67 

*Doei    V.    Pearson 712 

Doe   V.    Prigg 343       Duffield    v.   DufTield. 

Doe   V.   Provoost 330 

Doe   V.    Roach 97 

Doe  V.  Scudamore 309,  337,  358 

Doe  V.  Simpson 187,  192,  645 

Doe    V.    Tomkinson 324 

Doe  V.  Walbank 192,  645 

Doe  V.  Ward 335 

Doe  V.  Webb 600 

Doe    V.    Willan 192,  645 

Dohn's  Executor   v.   Dohn 513 

Doney  v.  Clipson 

181,   195,  404,  406,  428 

Donnelly   v.    Eastes 277 

Donnersberger  v.   Prondergast ..  253 

Donough   V.   Garland 374 

*Doo  v.  Brabant 598 

Doody   v.    Higgins 173 

Dorsey   v.    Dodson 497,  503 

Dott   V.    Cunnington 199,  437 

Dott  V.   Willson 421,  423,  424 

Doty    V.    Burdick. 

233,  251,  259,  261,  268 

Doty   V.   Doty 139 

Doty  V.   Teller 407 

Dougherty    v.    Dougherty .  ..208,  209 

Doughty  V.  Stillwell 205,  208 

Douglas   V.   Bolinger 136,  138 

Douglas  V.  Union  Mutual  Life 

Ins.   Co 277 

Downen  v.  Rayburn 220 

Downing   v.    Grigsby 572 

Doylcy  v.  Attorney  General....  635 

Drake  v.  Merkle    398 

Drake   v.    Steele 

67,  69,  184,  191,  308,  624 


179,  197,  199,  462,  475,  476 

Duffield  V.  Duffiold 208 

Dugan   V.   Follett 397 

*Duke  V.  Dyches 108,  487 

*Duke  of  Norfolk's  Case.  .  .109,  115 

Dull's  Estate 438 

Dumble,  In  re,  Williams  v.  Mur- 

rell     208 

*Dumpor  's  Case 279 

Duncan   v.    Bluett 433 

Duncan   v.   Martin 199 

Dunlap  V.  Taylor 389 

Dnnshee   v.   Dunshee    574 

Dunwoodie  v.  Reed 98,  106 

Durand,  In  re 704 

Duryoa  v.  Duryea.528,  531,  597,  606 

Dustin   v.   Cowdry 262,  272 

Dwyer  v.  Cahill 160,  565,  656 

Dyer    v.    Dyer 205,  206 

Earll  V.  City  of  Chicago 292 

Earnhart  v.  Earnhart 421 

East   Rome   Town   Co.   v.   Coth- 

ran     394 

Eaton  v.   Smith 626 

*Eavestaff    v.    Austin 599 

Ebey    v.    Adams 

173,   183,  184,  497, -506,   520, 

".  .526,  555,  563,  565 

Eceles    v.    Birkett 510,  .'51. 'i 

Eckf ord   v.   Knox .'>«.'^ 

Eckhart  v.  Irons.  177,  178,  220,  222 

Eddels'  Trusts,  In  re 208 

Eddowes  v.   Eddowea 474 

Edmondson  v.   Dyson 431 

Edwards  v.   Burt 370 


Ixv 


TABLiB  OF   CASES 


Sec. 


Edwards   v.   Edwards 166,  532 

*Edwards  v.   Hammond.  . .  .333,  334 

Edwards  v.   Varick 320a 

Edwards  v.  Woolf oik's  Adm'r.   106 

Edwick  V.   Hawes 270,  276 

Edyvean  v.  Archer 575,  577 

*Egerton  v.  Massey 

95,  306,  309,  311,  358 

Eiehengreen  v.   Appel 272,  273 

Eldred  v.  Meek 

499,  500,   510,  513,  520,  528, 
654,  663,  707,  708,  709 

Eldridge  v.  Trustees  of  Schools  220       Ferneley  's^  Trusts,  In  re 

Ellis  V.  Flannigan 494,650,726       ""'" 

Elton   V.   Eason 199,  437 

Elton   V.   Sheppard 160 

Eley  's    Appeal    1^0 

Ely  V.  Dix..467,  610,  611,  619,  620 

Elyton    Land    Co.    v.    South    & 
North  Alabama  R.  R.  Co 226 

Emerson,  Etc.  v.  Marks 730,  740 

Emmerson   v.   Merritt 

183,    184,    187,  624 

Emmert  v.  Hays 136,  138 

Emory  v.   Keighan 229       Finalson   v.    Tatlock 173 


Sec. 

Faloon  v.  Simshauser 476,  561 

Farnam  v.   Farnam 338 

Farnam  v.  Hohman.  .  .238,  249,  252 

Farrar    v.    McCue 630 

Farwell   v.   Warren 265,  267 

Faulkner   v.    Lowe 626 

Faulkner   v.  Wynford 636 

Felkel  v.   0  'Brien 137,  138 

Fellows  V.  Ripley 56 

Fenton   v.    Hall 184 

*Ferguson   v.   Dunbar 604 

Ferguson   v.   Mason 458 

678 

Ferre  v.   American   Board 631 

*Festing  v.  Allen 99,  309,  336 

Field    V.    Brokaw 229 

Field  V.  Peeples 

329,  389,  391,  392,  540,  546,  565 

Field  V.  Providence 220 

Fienhold  v.   Babcock 647 

Fifer  v.   Allen 

163,   164,  165,  399,  531,  532,  533 

Fifield  V.  Van  Wyck 704 

Fifty  Associates  v.  Howland...  276 


Engelthaler   v.    Engelthaler.123,  151 

Enos   V.   Buckley -^88,  389 

Equitable  Trust  Co.  v.  Fisher..   444 

Erwin  v.   Felter 215 

Eshbach  's  Estate   187 

Esker   v.   Heffernan 217 

Espen   V.   Hinehliffe 249,  254 

*  Evans  v.   Evans 

.; 421,    423,    424,    425,  428 

Evans  v.  Scott 497 

*Evans  v.  Walker 118 

Evans  v.  Weatherhead 438 

Eve,   Re 500 

Ewing  V.   Barnes 

158,   168,  349,  414,  415,  436, 

.441,  447,  461,  469,  471,  550 


Finch   V.   Lane 340,  341 

Finlon    v.    Clark 217 

Fishbaek   v.    Joesting.528,   531,  574 
Fisher  v.  Deering 

'..43,   241,  322,   379,  453 

Fisher   v.   Milmine 217 

Fisher    v.    Smith 241,  247 

Fissel  's   Appeal    579 

Fitch    V.    Miller 232 

Fitzgerald   v.   Daly... 467,   470,  479 

Fitzgerald   v.   Standish 628 

FitzGerald's  Settlement,  Re...   734 
Planner  v.  Fellows 

191,   563,  643^  652,  656,  678,  732 

Fleishman,   In   re 729 

Flinn  v.  Davis 719 


Eyres  v.  Faulkland 109       Flournoy  v.  Flournoy 173 


Faber  v.  Police... 99,  106,  312,  358 

Fabre  v.  Bryan 276 

Fabrice  v.  Von  der  Brelie 221 

Fairman  v.  Beal 

168,  202,  467,  610,  641,  648,  649 
Faith  v.  Bowles 220 


Flower,  Re   578,  694,  695 

Forbes   v.    Forbes 

161,  164,  415,  471,  725 

Forbes   v.   Peacock 628 

Ford    V.    Rawlins 515 

Forlouf   V.   Bowlin 217 


Ixvi 


TABLE  OP   CASES 


Sec. 

Forrest    v.    Porch 572 

Forsythe    v.    Forsythe 648 

Forsythe  v.  Lansing's  Ex'rs...   327 
Fort  Dearborn  Lodge  v.  Klein. 
261,  262,   265,  267,  268,  269, 

271,    272 

Fortesciie   v.   Scatterthwaite .  . .  .320a 

"Forth  V.  Chapman 544 

Forticr    v.    Ballance 233,245 

Foster   V.   Grey 641 

Foster  v.   Marshall 385,  387 

Foster  v.   Roberts 370 

Fowler  v.   Black 

412,  414,  421,  423,  424,  425, 

428,  440,  441,  465,  466 

Fowler  v.  Samuel 599 

Fox 's,  Edward,  Case 

62,  75,  379,  456 

Fox 's  Estate    603 

*Fox  V.  Fox 510,  513 

Frail  v.  Carstairs.467,  534,  552,  598 

Frame  v.  Humphreys 359,  409 

Franke  v.  Berkner 394 

Franklin    v.    Hastings 698 

Franklin  Savings  Bank  v.  Tay- 
lor       644 

Frazer  v.  Board  of  Supervisors 


Sec. 

Furness   v.   Fox 501 

Furnish   v.   Rogers 

162,  165,  307,  320,  349,  378,  469 
Fusselman   v.   Worthington.233,  245 

Fyflfe    V.    FyfFe 139 

GafTield    v.    Plumber 

162,  202,  467,  610,  648,  722 

Gage  V.   Hampton 319 

(iaines   v.   Fender 626 

Galbraith   v.    McLain 374 

Gallaher   v.    Herbert .  .221,   278,  727 

Galland    v.    Leonard 167 

Gainbell    v.    Trippe 626 

Gammon  v.  Gammon 643 

Gano   V.   Gano 137,  138 

Gardiner  v.  Savage 575,  582 

Garland   v.    Smyth 602 

Garrison    v.    Hill 380 

Garrison    v.    Little 697 

Garth   v.   Baldwin 437 

■Gatenby  v.  Morgan 597 

Gaueh  v.  St.  Louis  Mutual  Life 

Ins.   Co 573 

Gaunt    v.    Stevens 211,  212 

Gannon  v.  Peterson 

301,   ;!99,  465,  467,  494,  .545, 

574,  575 


.194,  303,  318,  402,  404      Gavvin  v.  Carroll, 


Frazier  v.   Caruthers.  .272,  276,  280 

Frazier    v.    Miller 221 

Freeland   v.   Pearson 637 

Freeman    v.    Freeman 307 

Freeman   v.   Parsley 575,  578 

Freeman 's   Estate    592 

Freme,    In    re 99 

French   v.   Calkins 701 

French    v.    Wilier 276 

Friedman  v.  Friedman. 95,  309,  310 
Friedman  v.  Steiner 

158,   168,  467,  482,  483,  542,  725 

Friend's  Settlement,  In  re 607 

Frith,  Re,  Ilindson  v.  Wood.  .  .   572 

Frogmortnn  v.   Wharrey 309 

Frost,    In    re 662 

*Fuller  v.  Chamier.  .  .417,  421,  428 
Fulwiler  v.  McClun.  .  .467.  470,  534 
Funk   v.   Eggleston 

168,  467,   610,   641,  648 


161,  319,  323,  467,  470,  4^ii    .l.-JS 

Gavin  v.  Curtin 64::,  647 

Gawler   v.   Standerwick '97 

Gazzard   v.   Jobbins 713 

Gebhardt  v.   Reeves 

284,  287,  290,  292,  293,  295,  299 
Geist    V.    Huffendiek , 

202,    421,    428,    4.30 

Genery  v.  Fitzgerald 208,  209 

Gerrish   v.   Hinman 579 

Gib.son  v.  Montford 208,  209 

Gibson   v.   Rees 229 

Gilbert  v.  Holmes 227 

Giles  v.  Little 648 

Giles  V.  Anslow 164,  472 

Giles   V.    Austin 282 

Gilman   v.   Bell 

467,  472,   610.   638,   639 

Gilman    v.    Hamilton 697 

Gittings    V.    M 'Dermott 173 


Ixvii 


TABLE  OP   CASES 


Sec. 

Glaubcnsklee  v.  Low 453 

Glanvill   v.   Glanvill 208 

*Glover  v.  Condell 

151,  307,  349,  413,  429,  435, 
436,  444,  445,  446,  447,  461, 
470,  472,  481,  482,  485,  489, 

. 542,  544 

Glover  v.   Stillson 627,  648 

Goddard    v.    Brown 645 

Goff    V.    Pcnsenhafer 

467,  481,   610,   641,  750 

Goleonda  Ry.  v.   Gulf  Lines  R. 

R " 240,  244,  277 

G  older   v.   Bressler 626 

*Golladay  v.   Knock 

158,  173,  309,  320,  323,  324, 
349,  358,  363,  364,  365,  366, 

367,    374,  382 

Gooch   V.  Gooch 474 

Goodrich    v.   Goodrich 

398,    609,    637,  639 

*Gore   V.   Gore 85 

Gorham   v.   Daniels 458,  464 

Gorman   v.   Mullins 647 

Gosling   V.    Gosling 734 

Gosselin  V.  City  of  Chicago...   292 

Gott  V.  Nairne 738 

Gould  V.  Howe 292 

Gould   V.    Mather 630,  632 

•Goulder,   In   re 713 

Gowland   v.  De  Faria 370 

Gowling    V.    Thompson 575,  579 

Gradle  v.  Warner 280,  282 

Graff  V.  Rankin 

320,  375,  394,   395,   397 

Graves  v.  Colwell 1''59 

Graves  v.  Rose 135,  137 

*Gray   v.   Blanehard 222,  223 

Gray   v.   Chicago,   M.   &   St.  P. 

Ey 

216,   219,  240,  244,  662,  749,  752 

Gray   v.   Lynch 626 

Greaves   v.   Simpson 421 

Gregg   V.   Tesson 385,  387,  392 

Gregson's    Trust    Estate,   In   re 

343,  528 

Green    v.    Bridges 282 


See. 

Green   v.    Ekins 208 

Green   v.    Grant 

160,   183,   187,  189,  191 

Green  v.  Hewitt 

202,  307,  308,  324,  486,  492 

Green  v.   Old  People 's  Home .  . 

216,   219,  240 

Green  v.  Spicer 731 

Greene  v.  Flood 205 

Greene   v.   O'Connor 220,  224 

Greenough   v.  Greenough 412 

Greenway  v.  Greenway 173 

Grey    v.    Pearson 123 

Greyston    v.    Clark 723 

Griffin  v.  Griffin 

168,  467,  610,  640,   641,  648, 

649,  726 

Griffith   V.   Plummer 187 

Griffiths  v.  Griffiths...  162,  168,  726 
Grimmer  v.  Friederich.324,  503,  528 

Grimshaw's   Trusts,  In  re 513 

Griswold  v.  Hicks.179,  197,  414,  418 
Grommes  v.  St.  Paul  Trust  Co.  254 

Gross  V.   Sheeler 436 

Gruenewald  v.  Neu 168 

Guthrie  v.  Walrond 208 

Guerin  v.  Guerin.160,  203,  659,  732 

Gulliver   v.   Vaux. 718,723 

Gutman   v.   Buckler 626 

G  Wynne   v.   Heaton 370 

Hadley  v.  Hadley 626 

Hadwen  v.   Hadwen 433 

Hageman   v.   Hageman 

....158,   412,   414,   440,   441,  727 

Hagger  v.   Payne 566 

Haig   v.    Swiney 160 

Haight   v.    Royee 158 

Hale    V.    Hale     (125    111.    399) 

207,  472,  643,  656,  699 

Hale    V.    Hale     (146    111.    227) 

184,    190,    645,    647 

Hale  V.  Marsh 648 

Hall  V.   Hall 575,  577,  579 

Hall   V.   Hankey 41S 

Hall   V.   Irwin 621 

Hall  V.  La  France  Fire  Engine 

Co 309,  357 

Hall  V.  Nute 331 


Ixviii 


TABLE  OF   CASES 


Sec. 

Hall   V.    Preble 648 

Hall   V.   Terry 500 

Hamel  v.  Minneapolis,  St.  P.  & 

S.  S.  M.  Ry 219 

Hamilton  v.  Chicago,  B.  &  Q.  R. 

R.    Co 287,  292 

Ilainilton   v.  Hamilton 

467,  610,  64.-'.,  644 

Hamlin  v.  U.  S.  Express  Co..  .  . 

162,  168,  182,  648,  720,  726 

Hammond   v.   Doty 261,  268 

Hammond  v.  Port  Royal  &  Au- 
gusta Ry.  Co... 222,  22.3,  225,  244 

Hampton  v.  Rather 199,  437 

Hampson  v.   Brandwood .324 

Hancock,  In   re 410,   686 

Handhcrry  v.  Doolittlo..564,  56.5,  569 
Handy  v.  McKim.187,  192,  19.3,  645 
Hanes  v.  Central  Illinois  Utili- 
ties Co 414,  416,  440 

Hanna  v.  Hawes 309,  433 

*Hanson    v.    Graham 512 

Harbin   v.    Masterman 733,  734 

Hardin  v.  Forsythe 233,  251 

Harding   v.   Butts 389 

"Harding  v.  Glyn 635 

Harding  v.  Sandy 272 

•Harman   v.  Dickenson 602 

Harms  v.  Kransz 319 

Harris  v.   Cornell 69 

Harris  v.  Davns 173 

Harris  v.  Du  Pasquier 205 

Harris   v.   Ferguy 182,  467 

Harris  v.   Lloyd 208 

Harris  v.   Shaw 220,  222 

"Harrison   v.   Foreman 597 

•Harrison  v.  Harrison 603 

Harrison   v.  Weatherby .  .  .  .303,  467 
Harshbarger  v.  Carroll.46;?,  464,  466 

Hart  V.  Lake 219,  244,  277 

Hart  V.  Seymour.. 69,  652,  656,  659 

•Hart's    Trusts,    In    re 497,   512 

Hartwell    v.   Tefft 

585,   588,   589,   594,  595 

Harvard  College  v.  Baloh 

325,  332,  503,  641 

Harvey  v.  Ballard 183,  187,  413 

Haskins  v.  Haskins 265,  267 


Sec. 

Hathaway  v.  Cook 463 

Haughton    v.    Harrison 208 

Havens   v.    Healy 568,   736,  740 

Ha  ward  v.   Peavey 

.321,  327,  328,  3.39,   .345,  358, 

.528,  643 

Ilawes    V.    Favor 227,  281 

If;!wkiiis  V.  Bohling 

;!24,  467,  497,  503,  610,  669 

Hawkins    v.    Kemp 627 

Hawley   v.   Kafitz 220 

Hawthorn   v.   Ulrich 614,  640 

Hay   V.   Bennett 215 

Hayes  v.  Lawver 237,  379 

Hayos   V.    Tabor 331 

Hayle   v.   Burrodale 486 

Hays  V.  St.  Paul  Church 222 

*Hayward    v.    Spaulding.  .  .104,  106 

Headen  v.  Rosher 370 

Healey   v.  Toppan 486 

Healy   v.   Eastlake 

162,  165,   168,  329,  545,  .551,  726 

Heard   v.   Read 573 

Heardson    v.    Williamson 187 

Hedges   v.   Riker 645 

Heclis   V.    Blain 53,     67 

Heims  Brg.  Co.  v.  Flannery.  .  .  .   254 

Heininger    v.    Meissmer 398 

Heisen  v.  Ellis 671,  702 

Heller    v.    Heller 13a 

Helm   V.  Webster 

240,   284,   287,   290,   293,  295 

Homi)hiirs   Estate 187,   192,  645 

Hempstead  v.  Dickson 

304,  482,  499,  528 

Hempstead  v.   Hempstead.  .  197,  198 
Henderson  v.  Blackburn 

168,  610,  640,  648,  717,  726 

Henderson    v.    Carbondale    Coal 

Co 245,  252 

Henderson    v.   Constable 205 

Henderson   v.   Harness 

123,   596,   712,  714,  716,  727,  731 
Henderson  v.  Hatterman.  .  .287,  292 

Henderson  v.  Hill 309,  358 

Henderson   v.  Mack 181 

Henderson  v.  Virden  Coal  Co..  .   656 
Hcnkins   v.    Henkins.  ,330,   571,  572 


Ixix 


TABLE   OF    CASES 


Sec. 
Hennessy    v.    Patterson ....  324,  357 

Henson  v.  Wright 69,  190 

Herbert   v.   Webster 678 

Herrell   v.    Sizeland 233" 

Heslop  V.  Gatton 123 

Hess  V.  Lakin 417 

Hetfield    v.   Fowler 485,494 

Heuser  v.  Harris 697,  698 

Hewitt   V.   Green 708 

Hicks  V.  Pegues 381 

*Hide  V.  Parrat 107 

Higgins  V.  Cro8by.384,  385,  387,  389 

Higgins   V.   Dawson 133 

Higgins    V.    Wasgatt 181 

Hill   V.   Barclay 282 

*Hill  V.  Chapman 566 

Hill  V.  Dade 184 

Hill  V.  Gianelli 

162,  571,  572,  652,  676 

*Hill  V.   Hill 

308,   320,  349,  353,  375,  378, 

395,  477 

Hill   V.   Reno 398 

Hillhouse   v.   Chester 381 

Hills  V.  Barnard 575,  581,  582 

Hilton    V.    Hilton 734 

Hincksman  v.   Smith 370 

Hind  V.  Poole 626 

Hinrichsen  v.  Hinrichsen 

.....327,   .348,   349,   353,   467,  545 

Hinze  v.  People 253 

*Hoare   v.   Parker 107,287 

*Hoath  V.  Hoath 512 

Hobbie   v.   Ogden 

176,   305,  489,   500,  574 

Hobgen  v.  Neale 575,  578 

Hodge   V.   Foot 603 

Hodgson  V.  Becktive 208,  209 

Holland  v.   Allsop 602 

Holland    v.    Wood 353,  523 

Holliday    v.    Dixon 158 

^Holloway  v.  Holloway 572 

Holmes   v.    Coghill 638 

*Holmes  v.  Godson 718 

Holmes  v.  Prescott 99,  336 

Holt  V.  Kees 217 

Holton   V.   White 205 

Hooper  v.   Cummings 222 


Sec. 

Hoots   V.    Graham 263,272 

*Hopkins    v.   Hopkins 208 

Ho])kinson  v.  Swaim 

642,   649,   659,  690,  691,  729, 

739,   747 

Hoppock  V.   Tucker 556 

Home  V.  Lyeth 438 

Horner   v.   C.   M.   &   St.  P.   Ry. 

Co 220 

*Horner  v.  Swann 611 

Horner's   Estate,   In   re 603 

Horseman  v.  Abbey 173 

Horsley  v.  Hilburn 359,  405,  409 

*Houell    V.    Barnes 628 

House  V.   Jackson 357,  358 

Houston  &  T.  C.  R.  Co.  v.  Ennis- 

CalvertCo 219 

Howe  V.   Hodge 

329,  499,  500,  510,  563,  566, 
568,  652,   656,   663,   677,  678, 

684,  706,  707,  708,  732 

*Howe   V.   Morse 658 

Rowland  v.  White.  .  ...245,  249,  379 

Howston   V.   Ives 200 

Hoyt  V.   Ketcham 219 

Hubbell  Trust,  In  re 192,  645 

Hubner   v.    Feige 259 

Huckabee   v.   Newton 69,  190 

Hudleston  v.   Gouldsbury 205 

Hudnall    v.    Ham 374 

Huffman    v.    Young 137,138 

Huf talin   v.   Misner 258 

"Hughes   V.   Ellis 598 

Hughes  V.   Nicklas 199,  437 

*Hughes  V.   Sayer 544 

Hughes  V.  Washington.467,  610,  644 

Hull  V.  Ensinger 

186,  202,  321,  .343,  472,  528 

Hull  V.  Hull 308,  574 

Humiston,    Keeling    &    Co.    v. 

Wheeler     254 

Humphrey   v.   Foster 180 

Humphrey  v.   Humphrey 160 

Humphreys  v.   Humphreys 205 

Hunt   V.    Fowler 697 

Hunt  V.   Hawes 182,  714 

Hunter   v.   Middleton 284 

Hunter's  Trusts,  In  re 515 


Ixx 


TABLE   OF    CASES 


Sec. 

Hurry   v.   Morgan 602 

Hurst   V.   Hurst 597 

Hurt   V.   McCartney 162 

Hutchoson  v.  Hodnett 

184,    192,   645,  646 

Hutcliiiis   V.   Heywooil HG 

Hutton    V.    Riiniisoii 2UG 

Hyde  Park,  Village  of,  v.  Bor- 
den      284,  29.-, 

Ide  V.  Ide 719 

Igleliart    v.    Iglehart 660 

111.  Cen.  Ins.  Co.  v.  Wolf 456 

I,  C.  K.  R.  Co.  V.  Wathen 227 

Illinois  Land  Co.  v.  Bonner.  .  .  . 

467,   499,   519a 

Illinois   Mission   Soc.   v.   Ameri- 
can Mission  Soc 643 

Illinois   &    St.   L.    K.    R.   Co.    v. 

Cobb    264,    265,  267 

Indianapolis,   etc.   R.   R.   Co.   v. 

Hood     220 

Ingraham   v.   Ingraham 

499,  564,   567,   655,  656,  677, 

684,    697,   698,    699,   700,  731 

Ingraham   v.   Mariner 727 

Irish  V.  Antioch  College 444 

Irvine    v.   Newlin 106,  309 

Irwin   V.   Powell 64 

Isaacson   v.   Van    Goor 205 

Jacob 's   Will,   Re 374 

Jacobs   V.   Ditz 

222,  3.55,  442,  467,  470,  479,  483 

Jacobs  V.  Jacobs 173 

Jacobs   V.   Rice 385,   387,  392 

Jackson,   In   re 556 

Jackson   v.   Bull 719 

Jackson    v.    Hendricks 380 

Jackson    v.    Hilton 380 

Jackson   v.  Jackson.  .  ..175,  581,  582 

Jackson'  v.  Mancius 384 

Jackson   v.   Marjoribanks 737 

*  Jackson    v.   Noble 597 

*  Jackson    v.    Robins 720,723 

Jackson   v.   Sehoonmaker 385 

Jackson  v.  Sparks 606 

Jackson  d.  Gouch  v.  Wood.. 64,  456 
James   v.   Shannon 205 


Sec. 

Jarvis   v.  Wyatt 309 

Jeffers    v.    Lampson 320a,  327 

Jenkins   v.    Bonsai 380 

Jenkins    v.     Jenkins 591,  595 

Jenkins  v.   Pye 370 

Jenks  V.  Jackson 182,  640,  644 

Jeune  v.  Jenne 163,  530,  712 

Jennings    v.    Jennings 750 

*Jesson   V.   Wright 

81,   421,  423,  424,  425 

Jodrell,  Re   129 

Johannes  v.  Kielgast 249,  254 

Johns  V.  Johns 647 

Johnson  v.  Askey 

162,  165,  545,  551,  572 

Johnson    v.    Buck 

415,  462,  467,  471,  472,  .542, 

647,  732 

.Tohnson  v.  Jacob 309 

Johnson   v.   Johnson 

159,   162,   165,   469,  545 

Johnson   v.   Johnson 648 

Jolinson   V.   Norway 6 

Johnson   v.   Preston 

17.3,   652,  653,  656,  657,   673, 

706,    708 

Johnson's  Appeal 585,  586,  595 

Johnson's  Trustee  v.  Johnson.. 

678,  737 

Johnston  's  Estate 708 

Joliet  Gas  Light  Co.  v.  Suther- 
land     240,  243 

Jones  V.  Bramblet   749 

Jones  V.   King 177,  178 

Jones  V.  Miller..  .329,  501,  515,  528 

Jones   V.   Morgan 429 

Jones  V.  Neely 221 

Jones    V.    Port    Huron    Engine 

Co 727,  731 

Jones  V.  Rees    436 

Jones  V.   Ricketts 370 

*  Jones   V.   Westconib 598 

*  Jones  V.  Winwood 611 

Jones'  Estate,  In  re 575,  578 

*  Jordan    v.    Adams 441 

Jordan  v.  Jordan 123 

Josselyn  v.  Josselyn 734 

Jull   V.   Jacobs 336,  599 


Ixxi 


TABLE   OF    CASES 


Sec. 

Kalies   v.   Ewert 552 

Kamercr  v.  Kamerer 

303,   304,   306,  309,  310 

Kaufman  v.  Breckinridge 

168,  202,  467,   610,  640,  648, 

649,  726 

Kavanagh  v.  Gudge 276 

Kean  's  Lessee  v.  Roe 381 

Kearsley  v.  Woodcock 713 

Keep's  Will,  In  re 602 

Kellett    V.    Shepard 

30,   311,   363,   482,    538,   545, 

551,    571,  572 

Kelley  v.  Meins 719 

Krfley   T.   Vigas 571,   572,  574 

Kelly  V.  Gonce 499,  503 

Kelly    V.    Stinson 205 

Kelso,  In  re  Estate 359,  405 

Kemmerer  v.  Kemmerer 184 

Kendall  v.   Gleason 573 

*Kendall  v.   Taylor 546 

Kennard   v.    Kennard 331 

Kennedy  v.    Kennedy 648 

*Kennedy  v.   Kingston 637 

Kenwood  Trust  &  Sav.  Bank  v. 

Palmer    370,  376 

Kepler  v.  Castle 475 

Kepler  v.  Larson 

20,   421,  423,  424,  425 

Kepler  v.  Reeves 417 

Kershaw  v.  Kershaw 374 

*Kevern   v.    Williams 568,  679 

*Kew   V.   Trainor 251,  279,  280 

Keys's  Estate,  In  re 438 

Keys  V.  Wohlgemuth 526 

KialLmark    v.    Kiallmark 713 

Kibbie  v.  Williams. .  .385,  387,  392 

Kilgore    v.    KUgore 579 

KilgouT   V.   Gockley 217 

Kilpatrick  v.  Mayor 220 

Kindig's      Exr's      v.      Smith's 

Adm'r    170 

King   V.   Edwards 227 

King  V.  Frost 604 

King  V.   Hamlet 370 

King  V.  King 

162,   165,   531,    540,   546,  647 

King  V.  King 69,  190,  731 


Sec. 

King  V.   Lee 220,  302 

King  V.  Norfolk  &  Western  Ry. 

Co 220 

King  V.  Savage 575 

King    V.    St.    Louis    Gas    Light 

Co 258 

King  V.   Withers 497 

King's  Heirs  v.   King's  Admr. 

199,   437 

Kingman,  In  re  Estate  of 401 

Kingman  v.  Harmon 

307,   334,  442,  467,  481,   501, 

513,  515 

Kivby   V.   Brownlee 431 

Kirkland    v.    Cox 

69,  189,  191,  697 

Kirkpatrick   v.  Kirkpatrick 

168,  324,  332,  467,  571,   572, 

610,  648,  649,  726 

Kittredge   v.   Locks  &  Canals.  .   387 

Kleinhans  v.  Kleinhans 

162,  163,   165,  167,  310,  330, 

347,  533 

Kline  v.  Marsh    506 

Knight  v.  Kniglit 259 

Knight  V.  Pottgieser 

196,  301,  308,  324,  330,  500, 

503,  528 

Knox   V.   Barker 438 

Koch  V.  Streuter 226 

Koeffler   v.   KoefiBer 

168,  301,  467,  542,  725 

Kohtz   V.  Eldred.530,  531,  678,  737 

Kolb  V.  Landes 

184,   442,  467,  470,  530,  535, 

652,   656,   657,  701 

Kolmer  v.  Miles 

177,   178,   196,   406,   411,  548 

Kountzleman  's  Estate   187 

Kountz's  Estate 500,  513,  527 

Kransz  v.  Uedelhofen 217 

Kratz    V.    Kratz 177,  202 

Krevet    v.    Meyer 258 

Kron  v.  Kron 

158,  168,  307,  445,  446,  447, 

461,  720 

Kruse  v.   Scripps 217 

Kurtz  v.  Graybill 467,  610,  644 


Ixxii 


TABLE   OP   CASES 


Sec. 
Kurtz  V.  Hibncr.  .123,  127,  Un,  137 

Kuuku    V.    Kawainiii 458,464 

Kynor  v.  Boll 

195,   196,  326,  359,   406,  408, 

409,    477,  565 

Lachenmyer  v.  Gchlbaeh 

161,   167,  307,  327,  328,  345, 

347,  353,  530,  533 

Lachlan    v.    Reynolds 173,208 

Lake  v.   Brown 444 

Lakey  v.  Seott 381 

Lambe  v.  Drayton 

158,   168,   178,  182,  471,  717, 

720,  726 

Lambert   v.    Harvey 

184,  208,  467,  610 

*Lambert  v.  Thwaites 636 

Lanipet  's    Case 320a,  485 

Lancaster  v.  Lancaster 

418,   553,   556,   564,  565 

*Lane  v.  Debenham 626 

Langlois  v.  Lesperance 178 

Lapsley  v.  Lapsley 605 

*Larges '    Case    713 

Lash    V.    Lash 151,  497,  644 

Latham  v.  I.  C.  R.  R.  Co 

216,    219,  242 

Latimer  v.  Latimer 

453,  463,  464,  466 

Lawrence  v.  Lawrence  (181  111. 

248)    ...69,  190,  431 

Lawrence  v.  Lawrence   (255  111. 

365)    136,  138 

Lawrence    v.    Lawrence    (4    W. 

Australian  L.  R.  27)    674 

Lawrence   v.   Phillips 603,  604 

Lawrence  v.  Pitt 380 

Lawrence   v.    Smith 

652,  653,  659,   663,  677,   684, 

685,  707,  708,  709 

Lawrence 's   Estate    694 

Lawton  v.  Corlies   573 

Lazarus  v.  Lazarus 734 

*Leake  v.   Robinson 677,  684 

Leary  v.  Kerber 69,  190 

Leary   v.   Pattison 237,   247,  248 

*Lechmere  &  Lloyd,  In  re 

99,  102,  103,  104,  105,  688 


Sec. 

Lee    V.    Lee 552 

*Lee   V.    Stone 601 

Lee  V.  Town  of  Mound  Station 

265,  292 

*Leeming  v.  Sherratt.496,  503,  515 

Lelinard   v.   Speclit 332 

Loiter   v.   Sheppard  .  .  .  160,   161,  169 
Leiindorf  v.  Cope 

158,   195,  3.59,  406,  409,  412, 

415,   418,    565 

Leniacks    v.    Glover 

309,    421,    423,  424 

l.eman    v.    Sherman 444,  613 

l^emp  Brg.  Co.   v.  Lonergan...   249 

Leonard  v.   Haworth 660 

Leonard  v.   Sussex 430 

Leslie   v.   Moser 493,  494 

Letchworth   v.    Vaughan 220 

Lewin   v.   Bell 

.196,  309,  310,  314,  318,  404,  406 

Lewis  V.  Barnhart 397 

Lewis    V.    narrower 303 

Lewis  V.  Palmer 648 

Lewis  V.   Pleasants 303,  397 

Lewis  V.  Rees 193 

L  'Herminier,  In  re,  Mounsey  v. 

Buston     160 

Lichter  v.  Thiers 593,  594 

Life  Ass'n  v.   Fassett 302,  381 

Liohtcap    V.    Bradley 2.30,231 

Lill    V.    Lill 206 

Lilley  V.   Fifty  Associates 282 

Linn   v.   Downing 731  * 

i/ittle  V.  Bowman 69,  162,  727 

Little    V.    Giles 648 

Little    V.    Wilcox 187 

Little  Rock  Granite  Co.  v.  Shall  282 

Livingston   v.   Greene 330 

*Lloyd    v.    Carew 116 

Lloyd   V.    Lloyd 515 

Locke  V.  Lamb 514 

Lockhart   v.   Lockhart 579 

Lockridge    v.    >Lace 708 

*Loddington  v.   Kinie..91,  309,  358 

Lomax    v.    Lomax 135,  137 

Lomax  v.  Shinn 203,  467,  610 


Ixxiii 


TABLE   OF    CASES 


Lombard  v.  Witbeek 

301,  528,  600,  60-1,  608 

*London    &    S.    W.    Ry.    Co.    v. 

Gomm     664,  665 

Long    V.    Moore 220 

Loifgshore  v.  Longshore 374 

Longwith   v.  Butler 610 

Longwith   v.   Riggs...643,    644,  647 

*Lord    V.    Bunn 731,  739 

Lord    V.    Comstoek 

189,   191,  412,   429,  431,  436, 

439,    739 

Loring  v.  Arnold 324 

Lorings   v.   Marsh 626 

Los      Angeles      University      v. 

Swarth    222 

Lovat  V.  Lord  Ranelagh 282 

Loveless  v.  Thomas 181 

Lovies  's   Case    332 

Low  V.  Elwell 262 

Low  V.  Graff 564 

Low  V.   Smith 430 

Lowe  V.  Land 602 

*Lucena    v.    Lnoena 606,607 

Lunt  V.  Lunt 

334,  350,   354,  500,  519,   520, 
522,   527,  528,   545,  568,  656, 

678,  732 

Lutwic'h    V.    Milton 61,     65 

Lux  V.  Hoff 213 

*Luxford  V.  Cheeke 330 

Lyle   V.   Richards 98,   106,  312 

Lyman   v.   Suburban   R.   R.   Co. 

277,   662,  752 

Lynch  v.  Svvayne.  .  .67,  69,  158,  190 

Lyndo   v.   Estabrook    648 

Lynn   v.   Worthington 330 

Lyon  V.  Acker 579 

McCaffrey  's   Estate,    In   re ...  . 

187,    192,    645,  646 

McCagg  V.  Heacoek 389 

McCall    V.    Lee 108,  485 

McCampbell  v.  Mason 

307,  309,  347,  359,  400,  418, 

428,  445,  446,  448 

McCartney    v.   Hunt 233,  245 

Ixxiv 


Sec.  Sec. 

McCartney  v.   Osburn 

405,  472,  496,  497,  499,  500, 
510,  515,  516,  518,  523,  528, 
553,   563,  564,   565,  569,  571, 

574,  579 

McCarty  v.  McCarty .  .309,  310,  319 

MeClintock   v.   Meehan 

162,    164,    467,  470 

McClure  's   Appeal    503 

McComb  V,   Morf ord 503 

McConnell  v.  Pierce 280 

McConnel   v.   Smith 160 

McConnell  v.  Stewart.  .324,  330,  467 

McCoy  V.  Fahrney 574 

McCoy  V.  Poor 394 

McCreary    v.    Coggeshall.  .  .  .95,  311 
McCullough  's  Adm  'r  v.  Ander- 
son        648 

McCutcheon  v.  Pullman  T.  &  S. 

Bank    652,  671,  702 

McDavid    v.    Bohn 200 

M 'Donald,  Ex'rs  of,  v.  M 'Mul- 
len    324 

McDuffee    v.    Sinnott 319 

McElwee  v.  Wheeler 

99,    106,    312,  358 

McFall  V.  Kirkpatrick 

69,    190,   384,    395,    412,   416, 

429,   609,   611 

McFarland    v.    McFarland..467,  596 

McGinnis  v.  Campbell 574 

McGinnis  v.  Fernandes. .  .  .233,  251 
McGunnigle  v.  McKee.585,  586,  595 
McTntyre  v.  Mclntyre.421,  423,  424 
McKindsey  v.   Armstrong.  .728,  731 

McMillan  v.  Deering  &  Co 648 

McNab  v.  Young 69 

McNair    v.    Montague 191,526 

McNcar  v.  McComber 181 

Ma<-hon    v.    Machen 199,  437 

Mackey   v.   Kerwin 220 

*Macleay,  In   re 712 

Mactier    v.    Osborn 282 

Macy  V.  Sawyer 205 

Madden  v.   Madden 631 

Maddock  v.  Legg 575,  577 

Maden    v.    Taylor 600,604 


TABLE  OP   CASES 


Sec. 

Madison  v.  Larmon 

lOQ,  303,  309,  327,  329,  358, 

528,   565,   652,   654,  655,  656, 

662,  704 

Maginn  v,  McDevitt 325 

Magrath   v.  Morehead 734 

Malier   v.    Maher 568 

Mandevillo  's  Case    39,  405 

*Mandlcbaum  v.  McDonell....  713 
Mann  v.  Martin..  168,  648,  722,  726 

Mannerhack,  Estate  of 187 

•Manning's   Case 108,  114,  485 

Mansfield   v.   Mansfield........   648 

Mara  v.  Browne 394 

Mariner  v.   Saunders 213 

Markillee  v.   Ragland 

168,   467,   610,   640,    648,  649 

Marks  v.  Gartaide 276 

'Marlborough     v.    Lord    Godol- 

phin     637 

Marriott   v.   Turner 208 

Marsh   v.   Reed 643,  647,  654 

Marsh   v.    Wheeler 504 

Marshall  v.  Grosse  Clothing  Co.  254 

Martin,   In   re 51.3 

Martin  v.  Aetna  Life  Ins.  Co..   584 

Martin   v.   Martin 151,  160 

Marvin  v.  Ledwith 308,  599 

Mason   v.   Bloomington   Library 

Ass'n 660,   661,  704 

Mason  v.  Pate's  Ex'r 199,  437 

Massey  's  Appeal   209 

Mather  v.  Mather 202,  329,  565 

Matthiesson   &    H.    Zinc    Co.   v. 

La  Salle..  .284,  285,  297,  298,  299 
Maulding  v.   Scott 438 


Sec, 
Meldahl  v.  Wallace 

308,  332,  343,  347,  500,   718,  720 
*M('llichainp  v.  Mpllichamp.  .74,  476 

Mclson  V.  Cooper 719 

Melvin  v.  Locks  &  Canals 387 

Mcngel  's  Appeal   438 

Mercer  v.  Safe  Dep.  Co 187 

Meredith   v.   Joans 66 

Merkel  's  Appeal   108 

Merrill  v.  Trimmer 282 

Mervin,  In   re 513 

Messer  v.  Baldwin 

99,  106,  309,  310,  572 

Mette  V.  Feltgen.  .210,  211,  212,  215 
Mettler  v.  Miller 

384,  387,  388,  389 

Mettler  v.  Warner 

499,   509,  528,   652,  656,   657, 

659,  673 

Metzen   v.  Sehopp 

196,  406,  410,  545,  548,  648, 

720,  726 

Miehaal's  Trusts,  In  re 678 

*Middicton  v.  Messenger 523 

Mildmay  's  Case   18,     73 

Miles  V.  Jarvis 102,  104 

Miller  v.  Emans 320a 

Miller  V.  Ewing 384 

Miller  v.  Gilbert 173 

Miller  v.  Lanning 398 

*Miller  v.   McAlister 

74,  445,  461,  476 

Miller  v.  Mowers..  181,  182,  415,  437 

Miller   v.   Pence 388,  395 

Miller  v.  Riddle 302 

Miller  v.   Travers 123 


May  V.  Boston 222,  224      Miller's  Appeal 595 

Maybank  v.  Brooks 133      Mills  v.  Newberry 


Mayer  v.  McCracken 

161,  164,  467,  470,  471 

Meachani   v.   Bunting 383,  384 

Meacham   v.   Steele 69 

Mead  v.  Ballard 222 

Mead  v.  Mitchell 357,  358 

Mead  v.  Pollock 272,  273 

Meath  v.  Watson 280 

Medinah   Temple  Co.   v.   Currey 

•  '  •• ^-1 ,  ->'i 

Ixxv 


598,  697,  717,  720,  722 

Mills  V.  Seattle,  etc.,  Ry.  Co 222 

Mills  V.  Seward..  .421,  423,  424,  425 

Mills  V.  Teel 149 

Milsom  V.  Awdry 603 

Minard  v.  Delaware  L.  &  W.  R. 

Co 219,  222 

Minchell  v.  Lee 583 

Mining  v.  Batdorff 330 

:Nrinot  V.  Paine 694 


TABLE   OF    CASES 


Sec. 

Minot  V.   Tappan 324,  572 

Mires  v.  Laubenheimer 374 

Missionary  Society  v.  Mead. . . .   139 

Mittel  V.  Karl 

211,  213,  309,  358,  528 

Mister  v.  Woodcock 384 

*Mogg  V.  Mogg.  .101,  104,  474,  476 

Molineaux  v.   Baynolds 209 

Moll  V.  Gardner 

67,  69,  183,  187,  190,  728 

Monast  v.  Letourneau 187 

Montefiore  v.  Browne 627 

Montgomery  v.  Montgomery. . .  .   421 

Monypenny  v.  Dering 710 

Moody  V.  Tedder .    648 

*  Moore,  In  re 750 

Moore  v.  Ffolliot 637 

Moore  v.  Herancourt 503 

*Moore  V.  Littel 357,  358,  361 

Moore  v.  Luce 385,  392 

Moore  v.  Rake 381 

*Moore  v.   Riddel 

308,  309,  359,  404,  406,  408, 

409,  420,  428,  477,  565 

Moores  v.  Hare 327 

Moran's   Will,  In   re 357,   358 

Morgan  v.  Grand  Prairie  Semi- 
nary     697,  698 

*Morgan  v.   Gronow 690,  694 

Morgan  v.  Morgan 668,  669 

Moroney  v.  Haas 

324,  513,   515,  .528,  657,  685, 

706,   708,  709 

Morrall  v.  Morrall 136,  138 

Morris,   In    re 513 

Morris  v.  Caudle 445,  461,  476 

Morris  v.  Phillips 

414,  467,  470,  483,  533,  545,  546 

Morrison  v.  Kelly 444,  610,  613 

Morrison  v.  Rossignol 665 

Morrison  v.  Schorr 203 

Morrison  v.  Sessions  Estate.  .  .  .   584 

Morse  v.  Cross 648 

Morton  v.   Babb.301,  41.5,  462,  471 

Moses  V.  Loomis 280 

Moss  V.  Chappell 219 

Moss  V.  Sheldon 181 


Sec. 
*Mott  V.  Danville  Seminary... 

244,  277,  300,  302,  381,  662 

Mowlem,   In  re 208 

Moyston  v.  Bacon 648 

Mudge  V.  Hammill 309 

Mueller  v.   Kuhn 

254,  268,  272,  273,  275,  276 

Muhlke  V.   Tiedemann    (177  111. 

606)    161,  440,  727 

Muhlke  V.   Tiedemann   (280  111. 

534)     546 

Mulberry  v.  Mulberry. 202 

Muldrow's  Heirs  v.  Fox's  Heirs  628 

Murfitt  V.  Jessop 158,  182,  196 

Murkin  v.  Phillipson 497 

Murphy  's    Estate 626 

Murray  v.  Emery 232 

Mussett  V.  Bingle 660 

Mustain  v.  Gardner 211 

Myar  v.  Snow 409 

Myers    v.    Warren    County    Li- 
brary Ass  'n   596 

Neale  v.  Neale 133 

Neilson  v.  Monro 173 

Nelson  v.  Davidson 389,  390 

Nesbitt  V.  Berridge 370 

Nevitt   V.   Woodburn 

652,  663,  706,  707,  708 

Nevius  V.  Gourley 222,  481,  676 

Newburgh  v.  Newburgh 123 

Newcomb  v.  Masters 

69,  244,  712,  714,  747 

Newhall  v.  Wheeler 153,  193 

Newland  v.  Marsh 389 

Newman  v.  Willetts 202 

Newton  v.   Harland 

262,  266,  272,  276 

New     York     Life     Ins.     Co.     v. 

Viele    592 

Nice's    Estate 575 

Nichols  V.  Gould 370' 

Nichols  V.  Guthrie 309,  358 

Nicoll  V.  Scott 

308,  324,  499,  517,  528,  621 

Nightingale  v.  Phillips 431 

Nimmo  v.  Davis 370 

Nixon  V.  Nixon 184,  187 

Noble  V.  Fickes 463 


Ixxvi 


TABLE  OF   CASES 


Sec.  Sec. 

Nodine  v.  Greenfield 3:58      Ostatag  v.  Taylor 272,  275 


Noel  V.   People 253 

Nort^h  V.  Graham 

302,  323,  381,  382 

Northern  Trust  Co.  v.  Whcaton 
:i07,  327,   328,  338,   345,  350, 

354,   534,  599 

Nott  V.  Johnson 370 

Nowak   V.   Dombrowski 

219,   220,  226 

Nowakowski  v.  Sobeziak 463 

Nowlan  V.  Nowlan 

183,  187,  191,  412,  429 

Oard  V.  Card 221 

O'Brien  v.  Battle 626 

Oddic  V.  Brown 669 

O'Donnell  v.  Eobson 220.  240 

*0  'Hare  v.  Johnston 

150,  152,  500,  509,   510,  513, 
516,  524,   525,  527,  546,  547, 

551,  657,  659,  661,  746 

Ohio  Oil  Co.  V.  Daughetee 

386,   399,  645 

Olcott  V.  Tope 

151,  170,  184,  189,  191 

Oldham  v.  Pfleger 217 

Oliver  v.  Powell 381,  382 

Oliver 's   Settlement,   lu    re 704 

Olney  v.  Levering 573 

*0  'Mahoney  v.   Burdett 

166,  167,  532,  597 

0  'Melia   v.   Mullarky 

.  .  .69,  307,  308,  320,  324,  ,330,  379 

O'Neil  V.  Caples 220,  221,  227 

Opening  of   One   Hundred   and 

Tenth   St.,  In  re 189,   192 

*Oppenheim    v.   Henry 

568,    679,    680,  732 

Ormc  's    Case 53,    67,  723 

Orr  V.  Yates 

158,   168,  301,  368,  467,  483, 

717,    720,  725 

Orthwein   v.    Thomas 384 

Ortmayer  v.  Elcock 

173,  320a,  324,  596,  706 

Orion's  Trust,  In  re 580,  581 

Osgood   v.   Eaton 56 

Osgood   V.  Franklin 628 


Owsley  V.   Harrison 

652,   65.J,   66:{,   707,  709 

Owston    v.    Williams 178 

Page    V.   DePuy 265,  270,  276 

I'age    V.    Dwight 259 

Page   V.   Gilbert 556 

Page    V.    Soper 611 

Pahlman   v.   Smith 

467,    610,    619,  644 

Paine  v.  Barnes 648 

*  Palmer  v.  Cook 

164,   307,  445,  446,  448,  461, 

465,  466,  471,  544 

Palmer    v.    Ford 282 

*Palmer    v.    Locke 612 

Palmer 's    Trusts,   In   re 602 

Papillon  V.  Voice 430,  433 

Papst  V.   Hamilton 222,  224 

*Parker,  In  re 513 

Parker  v.  Bolton 433 

Parker   v.   Boss 331,  337 

Parker   v.    Sears 626 

Parker  v.   Sowerby 503,  515 

*Parkin,  In   re 612 

Parkin   v.   Knight 173,  200 

Parrott  v.  Edmondson 630,  632 

Parrott  v.  Hodgson 268 

Parry,    Re 734 

Parsons    v.    Ely 374 

Parsons   v.    Miller 222 

Parsons   v.   Parsons 173 

Paschall   v.   Passmore 222 

Patch   V.   White 138 

Patten   v.   Herring 740 

Paul    V.    Carver 292 

Payne   v.   Rosser 382 

Payne   v.   Sale 187 

Peacock   v.   Evans 374 

Peadro    v.    Carriker 392 

Pearce   v.   Loman 497 

*Pearce   v.   Rickard.  .  .575,  577,  583 

Peard    v.   Kekewich . 734 

Pearson   v.    Hanson 596 

Pease  v.  Davis 160 

Pedder   v.    Hunt 421 

Pederson    v.    Cline 259,  268 

Peer   v.   Heunion 421,  428 


Ixxvii 


TABLE   OF    CASBg 


See. 
*Pells  V.   Brown 

..77,   85,    97,   328,   452,   480,  483 

Penn  and  Wife  v.  Heisey 390 

Pennsylvania  Co.  v.  Bauerlc... 

613,  626 

Pennsylvania  Co.  v.  Price 658 

Penny   v.   Peppin 160 

People    V.    Braucher 302 

*People    V.    Byrd 

358,  503,   520,  521,  534,  552,  555 

People  V.  Camp 330,  571,  572 

People  V.  C.  &  N.  W.  Ey 296 

People   V.   Cooper 253 

People  V.  Dulaney 181 

People    V.    Freese 202 

People  V.   Gilbert 227 

People  V.  Hazelwood 253 

People   V.   Jennings 

504,    505,    520,  526 

People  V.  Knopf 253 

People   V.    McCormick 401 

People   V.  Martin 253 

*Peoria   v.   Darst 

307,  340,  343,  358,  445,  446,  448 

Perceval  v.  Perceval 99 

•Perrin   v.   Blake 37,  437,  441 

Perrin   v.   Lepper .  .322,  379 

Peter   v.    Beverly 628 

Peterson   v.   Jackson 

303,    304,    318,  384 

Phayer  v.  Kennedy.  .  .309,  358,  469 

Phelps  V.  Cameron 575,  577 

Phelps  V.  Randolph... 259,  261,  268 
*  Phene's  Trusts,  In  re.  .  .  .635,  636 

Philipps  V.  Chamberlaine 160 

Phillips  V.   Gannon 219,  354 

Piatt   V.   Sinton 164 

Pibus  V.   Mitf ord 465 

Pierce   v.    Brooks 476 

*Piercy    v.    Eoberts 736 

Pinbury  v.   Elkin 324 

Pingrey  v.  Rulon 327,  347,  353 

Pinkney   v.   Weaver 

303,  305,  309,  316 

Piper  V.  Connelly 265 

Pirbright   v.    Salwey 660 

Pirrung  v.   Pirrung 534 

Pitney  v.  Brown 579 


Sec. 

Pittenger   v.    Pittenger 221 

Pitzel   V.   Schneider 

309,   336,  499,  500,   513,   528, 
563,  565,  570,  652,   653,  677, 

684,  707 

Pitzer  V.  Morrison 

158,   161,  166,  323,  398,  462, 

467,  470 

Plunket  V.  Holmes 309,  311,  358 

Polk  V.  Paris 199,  437 

Pollock   V.   Maison 229 

Pollock   V.   Speidel 322 

Pool   V.    Blakie 158 

Pool    V.    Potter 644 

*Porter,    In    re 713 

Porter  v.  Doby 431 

Portland    v.    Terwilliger 222 

Post  V.  Rohrbach 

301,  467,  653,  662 

"Post  V.  Weil 222,  225 

Postal     Tel.     Co.     v.     Western 

Union  Tel.  Co 727 

Potter  V.   Couch 183,   727,  728 

Potts  V.   Curtis 370 

Poulter  V.  Poulter 643 

^Powell  V.  Boggis 435,  713 

Powell   V.   Brandon 199,  437 

*Powell's   Trusts,   In  re.  .  .694,   695 

Powers  V.  Egelhoff 497,  500 

Powers  V.  Wells 332,  649,  651 

Prather   v.   Foote 645 

Pratt  V.   Stone 268 

Preacher 's  Aid  Society  v.  Eng- 
land     69,  139 

Presbyterian  Church  v.  Venable 

240,   300,   302,   381,  662 

Pressgrove  v.  Comfort 199,  437 

*Priee    v.    Hall 309 

Price  V.   School   Directors 662 

Price   V.    Sisson 575,  577 

Price   V.    Taylor 409 

Price   V.   Winter 390 

Proctor   V.    Tows 233 

*  Provost  of  Beverley's  Case... 

34,  423 

Prowse  V.   Abingdon 497 

*  Pulitzer   v.  Livingston ....  658,  662 


Ixxviii 


TABLE  OF   CASES 


Sec. 

PuUiaiii    V.   Christy 

610,  641,  648,  649,  7:50,  740 

•Purefoy  v.  Rogers. 91,  97,  309,  358 

Purser  v.   Short 467,   610,  641 

Putnam    v.    Fisher 626 

Quinlan  v.  Wickrnan ; .  . 

309,  398,  652,   653,  657,  685, 

706,    707,    708,  710 

Rackeniann    v.    Tilton 149 

•Radcliffe,   In    re 611 

Radobaugh   v.   Radebaugli 202 

Railsbai'k   v.  Lovejoy 

202,  308,  332,  467,  610 

Rakestraw  v.  Rakestraw 648 


Sec. 

Reiff    V.    Strlte 173 

Reinders  v.  Koppelman 584 

Reinhart  v.  Lantz 409 

Rembert   v,   Evans 324 

Remniers  v.  Remniers.327,  350,  355 

Remshart    v.    Ham 180 

Renaud  v.   Tourangeau 727 

Re  Qua   v.  Graham.  .  .453,  728,  731 
Rex    V.    Inhabitants    of    Ring- 
stead     206 

Rex   V.   Wilson 258 

Reynolds  v.   Pitt 282 

Reynolds  v.  Reynolds 431 

Rhoads  v.  Rhoads 


•Ralph  V.  Carric'k 205,  206,  575  207,  472,   482,   699,  732 


Ramsdell   v.   Ramsdell 648 

Randall   v.   Russell 486 

Randolph   v.    Hamilton 

485,  720,  722,  726 

Rankin  v.  Rankin 467,  610,  644 

'Ransdell  v.  Boston.  .  .485,  750,  752 


Rhode  Island  Hosp.  Co.  v.  Town 

Council  of  Warwick .-.  660 

Rhodes '  Estate   678 

Rhodes   v.  Rhodes 206 

Rhodes  V.  Whitehead.  .  .99,  309,  336 
Richards  v.  Bergavenny 


Rathbone  v.   Dyckman 205,  206  199,  421,  423,  424,  437 

Ratliffe    v.    Marrs 178,181       Richards    v.    Miller 

Rand   V.   Butler 572  571,    572,    573,574 

Richardson  v.   Richardson 648 


Rawley   v.   Holland 80,  452 

Rawlinson  v.  Wass 572 

Rawson  v.  Rawson 571,  572,  573 

Rawson  v.  School  District 220 

Raybourn    v.    Ramsdell 243 

Read  v.   Adams 161 

Read  v.  Snell 173 

Redfern  v.  Middleton 358 

Redmond  v,  Cass 64 

Reed  v.   Hatch 181 

Reed  v.  Welborn 562,  565 

Reeder  v.  Purdy 

261,  264,  265,  267,  268,  272 

Reeve  v.  Long 326 

Reeves  v.  Brayton 67 

Reeves  v.  Reeves 209 

Reichenbach  v.  Washington,  etc. 

Ry.   Co 222,  240 

Reichert  v.  Mo.  &  111.  Coal  Co. . 

69,  187,  212,  444,  609 

Reid  V.  Reid 626 

Reid  V.  Voorhees 

160,  499,   500,  510,  513,  527, 

652,  653,  657,  707,  708 


Richardson  v.  Van  Gundy 

398,  406,  408,  420,  477,  565 

*Richey    v.    Johnson 174,  506 

Rickman  v.   Carstairs 123 

Rickner  v.  Kcssler .  .  .  .177,  307,  308 

Riddick  v.   Cohoon 719 

Ridgeway   v.   Underwood 

321,  324,  374,  467,  479,  480, 

481,  508,  515,  519a,  527,  528,  563 

•Ridley,  In  re 658,  678,  737 

Ridley  v.  McPherson.  .575,  577,  583 
Riemenschneider  v.   Tortoriello. 

168,  641 

Rigg  v.   Cook 384 

Riggin  v.  Love... 178,  180,  412,  440 

Riggs  V.  Sally 409 

Risk 's  Appeal    579 

Rissman   v.  Wierth 

158,  161,  182,  415,  596 

Rizer   v.   Perry 209 

Roach  V.   Wadham 610 

Robb  V.  Belt 173 

Roberts,    In    re 674 


Ixxix 


TABLE   OP    CASES 


Sec. 

Eumsey  v.  Durham 503 

Euss    V.    Alpangh 322 

Russell,   In  re 436 

Russell  V.  City  of  Lincoln 292 

Russell  V.  Russell   (84  Ala.  48) 

585,    587,    593 

Russell  V.  Russell   (L.  R.  [1904] 

1   Ir.   168)    514 

Ryan  v.  Allen 

412,  413,   414,   429,   440,  441 

Ryan   v.   Clark 262 

Ryan   v.    Sun   Sing 265,267 

*  Sadler  v.  Pratt 658,  737 

Saeger  v.   Bode 

.] 159,  161,  648,  720,  726 

St.  Albyn  v.  Harding 370 

St.  John  V.  Quitzow 

284,   285,   287,   293,  299 

St.  Louis,  J.  &  Ch.  R.  R.  Co.  v. 

Mathers    749,  752 

SafPord  v.  Stubbs 384 

Salter  v.  Bradshaw 370 

Same 's  Case    57 

Sanders   v.   Pope 282 

Sandifer  v.  Sandifer 161 

Sanford    v.    Blake 208 

*Sanford  v.  Lackland. 568,  736,  740 
Sanitary  Dist.  v.   Chicago   Title 

&   Trust   Co 219,   280,  282 

Sassenberg    v.    Huseman.  .  .178,  180 

Sander  v.   Morningstar 409 

Saunders  v.  Edwards 433 

Saunders  v.  Vautier.  .516,  733,  734 
Sayer  v.  Humphrey.  .  .333,  374,  612 

Roome  v.   Phillips 333       Sayer    v.    Masterman 421,  424 

Roosevelt  v.   Porter 554       Scha'fer  v.  Eneu.  .585,  591,  593,  595 

Roundtree  v.  Roundtree 


See. 

Roberts   v.    Dazcy 462 

Roberts  v.  McEwen 268 

Roberts  v.  Roberts 202 

Robertson   v.    Gaines 628 

Robertson  v.  Guenther.309,  358,  399 

Robeson  v.  Cochran 

338,    341,   358,   531,   545,  546 

Robinson    v.   Allison 630 

Robinson   v.   LeGrand  &  Co....   421 

Robinson  v.  Payne 178,  181 

Robinson  v.  Robinson 196 

Robinson    v.    Sykes 575,579 

'Robinson    v.    Wood 597 

Robson,  In  re 99,  104,  106 

Rochfort   V.   Fitzmaurice 433 

Rock    Island    &    P.    Ry.    Co.    v. 

Johnson    292,  298 

Rocke   V,   Rocke 734 

Roden   v.    Smith 568 

Rodrigue,    Appeal   of 67 

Roe   V.   Tranmer...63,   75,  456,  464 
Roe  d.  Bendale  v.  Summerset .  .   205 

Roe  d.  Thong  v.  Bedford 441 

Rogers'  Estate,  In  re 327 

Rogers   v.   Randall 487 

Rogers   v.  Rogers 163 

Rogers    v.    Ross 208,  209 

Rohn    V.    Harris 383 

Rolf e  V.  Harris 282 

Rose  V.  Hale 203,  ,303 

Rose  V.  Ruyle 265 

Ross  V.  Ross 580,  581 

*Ross    V.    Ross 722 

Roth  V.  Michalis 307 


309,   324,  358 

Rountree   v.    Talbot.... 177,  182 

*Rous    V.    Jackson 694,  695 

Routt   V.  Newman 162 

Row's  Estate,  In  re 602 

Rozier   v.  Graham 409 

Ruch  V.  Rock  Island 285 

Ruddell   V.   Wren 307,   367,398 

Rudolph  V.  Rudolph    553 

Ruffin  V.  Farmer 499 

Ixxx 


Schaffor   v.   Kettell 556 

S?haefer  v.   Schaefer 

169,  414,  469,  565,  574,  652 

Schaefer  v.   Silverstein 276 

Scheidt   V.   Belz 241,  379 

Schifferstein   v.    Allison 230 

Schmaunz  v.  Goss 196 

Schmidt  v.  Jewett 575,  577 

Schmidt 's  Estate,  In  re 704 

Sehreiner  v.   Smith 648 

Schroeder   v.    Bozarth 384 


TABLE   OF    CASES 


Schuknccht  v.  Schiiltz 

500,  515,  563,  564,  565,  652, 

653,  677,  684, 

Schumann    v.    Sprague 

Scofield  V.  Olcott 

324,  497,   500,   503, 

*Scott  V.  Bargeman 

Scott  V.   Perkins 

Scale  V.  Scale 

Seamans   v.   Gibbs 

Sears  v.  Putnam 736, 

Security  Co.  v.  Pratt 

Security  Ins.  Co.  v.  Kuhn.  .350, 
Sewall  V.  Roberts 

585,  588,  589,  .590,  593,  594, 
Sexton   V.  Chicago   Storage   Co. 

240, 

Seymour   v.   Bowles 

197,  200,  307,  398,  405,  445, 

545,    551, 

Shackelford  v.  Bullock 

Shackelford  v.   Hall 

Shaekelton   v.   Sebree 

453,  456.  458,  459,  463,  464, 

Shailer  v.  Groves 

*Shallcross 's    Estate,    In    re... 

658,  678,   733, 

Shapland  v.  Smith 187,  192, 

Sharington  v.  Strotton 

Sharman   v.   Jackson 

Sharon   v.   Tucker 

*Shaw   V.    Ford 719, 

Shaw   V.   Ilussey 

Sheets  v.  Wetsel 

492,  493,   494,   499, 

Shelcy  v.  Sheley 530,  533, 

Shelley 's  Case   

Shelly  V.   Nash 

Shelton   v.    Homer 

Shephard   v.   Clark 

Sheridan    v.    Hou.se 357, 

Sherman  v.  Flackl74,  503,  520, 
Sherman  v.  Town  of  Jefferson. 

216,   219,    240,   280,   281, 

Shortall  v,   Hinckley.  .385,  387, 

Shortridge  v.  Lamplugh 

Shoudy  V.  School  Directors.... 
Shreve    v.   Shrevc 


Sec.  Sec. 

•Sibley's  Trusts,  In  re.  .  .  .575,  579 

Siccloff  V.  Redman's  Adm'r.431,  436 

704       Siildons   v.   Cockrell 

229  158,   182,  202,  324,  327,  342, 

347,  353,  362,   528,  534 

669       Sii'dlcr    v.    Syms 669 

600       Sic^wald  v.  Siegwald 

648  182,   .■i09,  445,  446,  467,  486,  492 

43.">       Silva  V.  Hopkinson 

662  1.38,   349,  414,  415,  436,  441, 

740  447,  461,  469,  471,  545 

648       Silvester  v.  Wilson 187,  192,  645 

520       Simmons  v.   Ross 374 

*Simonds  v.  Simonds 

595  103,  104,  106,  315,  688 

Siniunton    v.    White 421,424 

243       Simpson   v.   Erisner 189 

Simpson    v.    Simpson 374 

Skinner   v.   McDowell 

574  168,   638,   644,   648,  726 

187       *Slade   v.  Patten 658,   659,  661 

751       Slater   v.   Gruger 211 

Slater  v.  Eudderforth.  .190,  192,  645 

466       Sloan   v.   Hanac 171,  173 

528      Slocum   v.   Hagaman 599 

*Smaw  V.   Young 357 

737       Smell  v.  Dee 500 

645       Smith,   In  re 626 

63       Smith  V.  Butcher 436 

309       Smith    v.    Carroll 467,   470,  480 

319       Smith    v.   Chester 

723           99,    106,   307,   309,   310,   319, 
648  328,  341,  343,  345 

*Smith  V.  Death 611 

720       Smith   v.   Dellitt.158,   170,   175,  533 

732       Smith  v.  Garber 140 

423       Smith   v.  Hoag 258,  261,  268 

370       Smith    v.    Hunter 184,624 

630       Smith    v.    Isaacs ..678,733 

481       Smith    v.    Kenny 727 

358      Smith    v.    Kimbell 

599  161,   164,  307,  445,  446,  448, 

467,   531,  539,  544,  545,  551,  571 

749       Smith   v.    MeConnell 326,655 

392       Smitli   v.  McCormick 199,  437 

58       Smith    v.    Palmer 503 

258       Smith    v.    Pendell 320a 

187       *Smith  v.  Plummcr 611 

Ixxxi 


TABLE   OF    CASES 


Smith  V.  Smith  (71  Mich.  633) 
178, 

Smith  V.  Smith  (254  111.  488) 
53,    67,    69,   412, 

Smith    V.    Tucker 

Smith   V.    West.. 324,   327,   347, 

Smith    V.    Winsor 

Smith 's   Appeal    

Smith's  Will,  In  re 

Smith  d.  Dormer  v.  Packhurst. 

78, 

Smyth    V.    Taylor 

Snow   V.   Poulden 

Snowe   V.    Guttler 77, 

Sohier  v.   Trinity   Church 

Soper  V.  Brown 575, 

South  Norwalk  Trust  Co.  v.  St. 
John     

Southam  v.  Blake 575, 

Southcote   V.    Stowell 

Spangler    v.    Newman 

Spatz  V.  Paulus 309,  310, 

Speakman   v.   Speakman 

Spencer   v.   Spencer.  .  .512,   526, 

Spencer   v.    Spruell.  .  .106,    403, 

Spencer   v.    Wilson 513, 

Spengler   v.    Kuhn 

191,  309,  350,  354,  358,  377, 
508,  520,   522,  619,   643,  648, 

Spooner  's  Trust   

Springer  v.  Chicago  Real  Estate 
Loan   Co 241,   243, 

Springer  v.  Congleton 

Springer   v.  Savage.  .  .202,   308, 

Sprinfffiekl,  In  re,  Chambcrlin 
V.    Springfield 

Springfield  Traction  Co.  v.  War- 
rick     219,   227, 

Stainger's  Estate,   In   re 

Stafford  v.  Read 

Stambaugh  's   Estate    

Standard  Paint  Co.  v.  Prince 
Mfg.   Co..  187,   191,   192,   645, 

Stanley  v.   Colt 

Stannard,  In  re,  Stannard  v. 
Burt     

Staples  V.   Hawes 

Starr    v.    Moulton 467,    610, 


See.  .  Sec. 

Starr  v.   Willoughby.  .339,  358,  528 
181       State    V.    Savin 108 

State  V.  Welch 199 

413       Stebbins   v.  Petty 221 

399       Steele   v.    Gellatly 395 

361       Steib  v.   Whitehead 

574  727,  731,   732,  740 

438       ^Stephens  v.   Stephens 116,  208 

515       Stevens  v.  Hale 205 

Stevens   v.    Winship 384 

80       Stevenson  v.  Stevenson 

611  135,    136,    137,151 

734      Stewart  v.  Neely 311 

97       Stewart  v.  Stewart 

222  159,   168,  307,  445,  446,  447, 

577  461,  718 

Stickel  v.  Crane 323 

597  Stillman   v.   Palis 259 

578  Stilwell  v.  St.  L.  &  H.  Ry.  Co. 

97  222,    223,  225 

222       Stisser  v.  Stisser 437,  551 

349       Stockton    v.    Martin 199,437 

173       Stoff   V.    McGinn 621,643 

536       Stokes  v.  Van  Wyck 572 

716       *Stoller  v.  Doyle.  164,  165,  462,  483 
527       Stonor  v.   Curwen 433 

Strain  v.  Sweeny 

164,   307,  441,  445,  446,  467, 

649  544,    545,  551 

641       *Stratheden,  In  re  Lord 673 

Straw  V.   Barnes 171,  173 

279       Strawbridge  v.  Strawbridge.169,  196 

556       Streit  v.  Fay 714 

730       Strickland  v.  Strickland 

327,   345,  .346,  491,  503 

205       Striker  v.  Mott 481 

Strode  v.   McCormick 324,  508 

282       Stromberg      v.      Western      Tel. 

598  Cons.   Co 280 

546       Strong  v.  Dignan 253 

740       Stroud   v.    Morrow 648 

Stuart    v.    Babington 694,  695 

646       Studholme   v.   Hodgson 208 

222       Stump  V.  Findlay.99,  106,  312,  358 

Summers  v.   Higley 644 

173       Summers  v.  Smith 

704           301,   307,  445,  446,  448,  467, 
644  528,    531,    545,  551 

Ixxxii 


TABLE   OF    CASES 


Sec. 


Sunday  Lako  Miniiifj  Co.  v. 
Wakefield     

Supervisors  Warren  Co.  v.  Pat- 
terson      220, 

Surridgc   v.   Clarkson r)75, 

Sutherland   v.    Harrison 

Sutherland   v.  Sutherland 

Sutton  V.  Read 

SwafBeld   v.   Orton 

Swaini  v.   Swaiin 

Swallow  V.  Swallow 

Swift  V.  Castle 

Swift   V.    Lee 1:57, 

Symi)Son   v.    Hornsby 

Symson   and    Turner 

Tainter  v.   Clark 

Talbot  V.   Jevers 

Talcott  V.  Draper 

Tallman  v.  Wood 

Tandy,    In    re 

*Tarbuek  v.  Tarbuek 

Tarver  v.   Haines 

Taunton  v.   Costar 

Taylor  v.  Cedar  Rapids  &  St.  P. 
R.    R.   Co 222, 

Taylor  v.  Cleary 421, 

Taylor  v.  Cole 

Taylor  v.  Conner 

Taylor  v.  Horde 46, 

Taylor   v.    Keep 

Taylor  v.   Lindsay 

Taylor  v.  Taylor .309, 

Taylor,  In  re,  Smart  v.  Taylor. 

Taylor  v.  Vale 

Taylor  v.  Walson 

Teague's  Settlement,  In  re.  . .  . 

Temple  v.  Scott.  ..'J09,  358,  400, 

Tennison   v.   Walker 179, 

Terhune  v.  Commercial  Safe 
Dep.   Co 161, 

Tharel  's  Trusts,   In  re 

Tharp's  Estate,  In  re 

Thayer  v.   Wellington 

*Thellusson  v.  Woodford 

Thicknesse  v.   Liege 

Thomas  v.   Eckard 46.3, 

Thomas  v.  Miller 

159,  162,  16.->,  321,  531,  571, 


222 
578 
573 
573 
303 
734 
20;; 
556 
644 
138 
205 
67 
628 
734 
392 
433 
160 
598 
630 
258 

225 
428 
258 
173 
384 
697 
438 
358 
208 
65 
644 
665 
528 
181 

164 
208 
602 
209 
116 
540 
662 

572 


Tliomas    v.    Tliomas 308, 

Thomasson  v.  Wilson.. 233,  241, 

Tliomman  's    Estate    

Thompson,   In    re 

Thompson    v.   Adams 

329,  339,  343,  358,  400,  508, 

643, 

Thompson   v.  Becker.  .467,  481, 

Thompson    v.    Carl 

Tliom])son  v.  Maloney 

Thompson   v.   Mason 

Thomjison    v.    Sandford 381, 

Thomjison 's   Heirs   v.   Green... 

...■. 385, 

Thomsen    v.   McCormick 

Thornton    v.    Davenport 

Thornton  v.  Mehring 

Tliornton  v.  Natchez 

Thoroughgood  's  Case   

Thurston    v.    Thurston 

187,    192,    309, 

Tillinghast,  Account  of  William 

R 199, 

Tillinghast  v.   Coggeshall 

Tilson  V.   Thompson 

Timing   v.   Staekhouse 

Tinker  v.  Forbes 

Tirrell  v.  Bacon 

585,   588,   589,  594, 

Toledo,  St.  L.  &  N.  O.  R.  R.  Co. 

V.  St.  Louis  &  O.  R.  R.  Co. .  . 

Tomlin  v.  Blunt 

Tompkins,    Re 187, 

Townsend  's  Estate,  "In  re,  Town- 
send  V.   Townsend 

Tracy  v.   Roberts 

Trafton   v.   Black 

Tredeiuiick  v.   Tredennick.  .690, 

'Treharne  v.  Layton 

*Tritton,  In  re 107, 

Trogdon    v.    Murphy 

Truman,   In   re , 

Trustees    v.    Brainard 

Trustees   v.   Petefish 

Trustees  of  Schools  v.  Braner.  . 

220, 

Trustees    of    Union    College    v. 

Citv   of   Now   York 


Sec, 
353 
251 
503 
733 


648 
482 
409 
292 
203 
382 

387 
292 
485 
235 
220 
451 

645 

437 
431 
385 
579 
220 


595 

277 
227 
189 

208 
390 
697 
694 
540 
491 
485 
584 
297 
697 

227 

219 


Izxxiii 


TABLE   OF    CASES 


Tucker  v.  Adams 

Tucker  v.  Billing 

Turner   v.    Hause 

233,   384,   390,  409, 

Turner   v.    Ivie 

Turner  v.  Meymott 

Turner  v.   Wright 399, 

Turney,  In  re 510, 

Twisleton   v.   Griffith 

Twist   V,    Herbert 604, 

Tyler    v.    Moore 

Tyler  v.  Yates 

Tynte  v.   Hodge 

Tyrrel's  Case   

Underhill  v.  Saratoga  &  Wash- 
ington   K.    K.    Co 222, 

Union  Safe  Deposit  v.  Dudley. 
575, 

Ure  V.   Ure 187,   192, 

Uzzell  V.  Horn 67, 

*Vachel   v.   Vachel 

Vallette  v.   Bennett 

Valter   v.   Blarka 

*Vanatta  v.  Carr 

Vanderheyden  v.  Crandall 

Vangieson    v.    Henderson 

412,    414, 

•Van  Grutten  v.  Foxwell.  .  .37, 

Van  Home  v.  Campbell 

Van  Bensselaer  v.  Hays 

Vansant  v.   Allmon 

Vermont,  Village  of,  v.  Miller. 

Vernon  v.  Wright 

Vestal  V.  Garrett 137,  138, 

*Viner  v.  Francis 

Vinson   v.   Vinson 

451,   453,   456,   463,   464, 

Virgin   v.   Marwick 587, 

Vogt    V.    Vogt 187, 

Volunteers  of  America  v.  Peirce 

Von  Beck  v.  Thomsen 

Voris  V.  Renshaw.240,  279,  662, 

Voris  V.  Sloan 

195,  360,  406,  409,  418,  540, 
544,  546,  565, 

Waddell  v.  Rattew.98,  106,  312, 

Wade-Gery  v.    Handlcy 

Wafer  v.  Moeato 


Sec.  Sec. 

309       Wagner  v.  Wagner 

196  659,  732,  740,  744 

Wagstaff  V.  Lowerre 431 

565      Waite  v.  Littlewood 602 

187       Wake  v.  Varah 602 

258       Wakefield   v.   Van   Tassel 

465  216,    662,  752 

513      Wakefield  v.  Wakefield 

370  317,    338,    358,599 

606       Waldo  v.  Cummings 

181  480,  483,  485,  488,  489,  494, 

370  545,  652,  656,  714 

370       Walker  v.  Converse 319 

67       Walker   v.   Mulvean 390 

Walker  v.  Pritchard 

240  168,  202,  467,  485,  486,  492, 

610,   648,   649,   722,  726 

580       Walker  v.   Shepard 714 

645       Walker  v.  Taylor 704 

69  Walker  v.  Walker  (25  Ga.  420)   196 

107  Walker  v.  Walker   (283  111.  11) 

69  500,   509,  520,  526,  527,  537,  573 

465  Walker  's   Estate,   In  re 603 

648      Walkerly  's  Estate,  In  re 704 

187  Wall  V.  Goodenough.  .  .233,  245,  453 

Wallace  v.   Bozarth 182 

440       Wallace  v.  Foxwell 

421  372,  412,  417,  429,  436,  440, 

719  626,  729,  739,  745 

9      Wallace  v.  Monroe 183,  728 

217       Wallace  v.   Noland 

292  552,    585,    591,  595 

196      Wallace  v.  Wallace 617 

308       Wallingford   v.   Hcarl. 384 

556  Walpole    and    Conway 332 

Walsh  V.  Wallinger 637 

466  Walton   v.   FoUansbee 

593  18.!,   187,   192,  193,  309,  320, 

191  321,    358,  646 

557  Ward   v.   Amory 191,  192,  645 

587       Ward   v.  Butler 417,  441 

712       Ward   v.    Caverly 648 

Warden  v.  Richards 628 

Wardle   v.    Carter 370 

647  Wardner    v.    Baptist    Memorial 

358  Board     647,648 

208       Wardwell  v.  McDowell 

282  619,   620,   628,  630 

Ixxiv 


TABLE  OP    CASES 


Sec. 

Ware  v.  Richardson 

187,   192,    193,  645 

Ware    v.    Schintz 217,230 

Warner  v.  Bennett 277 

Warner  'a  Appeal    556 

Warren   v.   Warren 319 

Warren  v.  Webb 648 

Watkins  v.  Reynolds 69 

Watkjns  v.  Specht 67,   183,  193 

Watkins  v.  Weston 160 

Watson  V.  Dodd 309,  358 

Watson    V.    Fletcher 245,  280 

Watson    V.   Pearson 183,  191 

Watson  V.  Smith 375 

Watson  V.  Watson 387 

Watson  V.  Young 686 

Watts    V.    Clardy 199,437 

Watts  V.  Parker 64 

Way    V.    Geiss 562,  565 

Weale  v.  Lower 97 

Weart  v.  Cruser 407 

Weatherall  v.   Thomburgh..733,  734 

*Webb  V.  Hearing 331 

Webbe    v,   Webbe 195,  196 

Webster  v.  Nichols 243,  280 

Weehawken  Ferry  Co.  v.  Sisson 

575,  577 

*Weekes'   Settlement,  In  re...   637 

Wehrhane  v.  Safe  Dep.  Co 440 

Weigel  V.  Green 384,  390,  397 


Sec. 

Wenner  v.   Thornton 621 

*We.st  V.   Berney 611 

West  V.  Fitz.184,  185,  187,  191,  444 
West  Side  Auction  Co.  v.  Conn. 

Mut.  Life  Ins.  Co 254 

Westcott  V.  Arbuekle.  .267,  268,  271 

Westcott   V.   Edmunds 69 

Westcott  V.  Meeker... 421,  423,  424' 

Wetmore  v.  Henry 635 

Wetzel  V.  Meranger 276 

Weymouth  v.  Irwin 503 

*Whartoii    v.    Masterman..  .733,  734 

Whelen   v.   Phillips 370,  375 

Whitaker  v.  Rhodes 398 

Whitaker  v.  Whitaker 392 

Whitcomb    v.    Rodman 137,138 

White  V,  Collins 421 

White  V.  Crawford 170 

White  V.  Glover 643,  644 

White  V.  Green 205 

White  V.  Naerup 220,  251,  272 

*  White  V.   Summers 98,  309 

White   V.    Taylor 628 

White    V.    Warner 282 

White   V.   Willard 354,   463,  464 

Whiting  V.  Nicholl 395 

Whittaker  v.  Gutheridge.  .  .720,  726 
Wicker  v.  Ray...  184,  190,  430,  433 
Wiggins   Ferry  Co.   v.  O.  &  M. 
Ry.  Co.    .  .  .* 301 


Weihe  v.  Lorenz 161       wiggin  v.  Perkins 331 

Wight  V.  Thayer 409 

*Wild  's    Case     561,  562 

Wilder  v.   House 265,  267 

*Wilkes  V.  Lion. 411 

Wilkinson,  In   re 641 

*  Wilkinson   v.  Duncan 691 

Willhite  V.  Berry 384 

Williams,  In  re 510,  512,  513 

'Williams  v.  Elliott 

158,  168,  301,  471,  483,  725 

Williams  v.   Esten 

320,    320a,    321,  479 

*  Williams  v.  Herrick 658 

Williams   v.   Vanderbilt 248,  254 

Williams  v.   Williams    (189   111. 

500)     135,    137 


Weimar  v.  Fath 628 

Weinreich  v.  Weinreich 222 

Welch  V.  Allen 69 

Welch    V.    Crowe 167,  533 

Welch    V.    Welch 178,    180,418 

*Weld  V.  Bradbury 476 

Weldon    v.    Hoylaud 575,578 

Welliver  v.  Jones 

196,   324,   359,   406,  407 

Wells'  Estate,  In  re 359,  405 

Wells  V.   Prince 385 

Welsch     V.     Belleville     Savings 

Bank    

168,  441,  471,  485,  486,  487, 
488,  489,  492,  493,   494,   648, 

720,  722,  723,  726 

Wendell  v.  Crandall 380 


Ixxxv 


TABLE   OF    CASES 


Sec. 
Williams    v.    Williams    (91    Ky. 

547)     173 

Williams,  Ee;    Spencer  v.  Brig- 
house   208 

Williamson  v.  Games 531 

Williamson  v.   Daniel 199,  437 

*  Willing   V.   Baine 598 

Willis  V.  Hiseox 421 

Willis   V.   Lucas 205 

Willougliby   V.   Brideoke 370 

Willoughby    v.    Lawrence.  ..240,  243 

Wills   V.   Wills 208 

Wilmans  v.  Eobinson 409 

Wilmington  Star  Mining  Co.  v. 

Allen     282 

Wilson  V.   Duguid 636 

Wilson  V.  Gait 216,  472 

Wilson  V.  Jones  &  Tapp 282 

Wilson    V.    Knox 510,  513 

Wilson   V.   Kruse 64 

Wilson  V.  Mason 617 

*Wilson   V.   Piggott 616 

Wilson  V.   Turner 

159,   168,  471,  485,  717,   720, 

722,  726 

Wilson  V.  Wilson  (261  111.  174) 

531,  546,  551,  552 

WUson  V.  Wilson  (268  111.  270) 

131,  158,   168,  718 

Wimberly  v.  Hurst 641 

Winchell  v.  Winchell 

404,  406,  411,  420,  .546,  548 

Wingfield  v.   Wingfield 173 

Winslow  V.  Goodwin 324 

*Winsor  v.  Mills 658,  678,  737 

Winston  v.  Jones 643 

Winter  v.  Dibble 

412,  420,  421,  423,  424,  42.5, 

428,   441,  535 

Winter   v.   Gorsuch 178,  181 

Winterbottom    v.    Pattison 403 


See. 
Wolfer  V.   Hemmer 

158,  414,  415,  441,  471,   717, 

720,    721 

Wollaston   v.   King 690,  694 

*Wood,   In   re 674 

Wood   V.  Burnham 433 

Wood  V.  Morton 233 

Wood  V.  Robertson 339,  579 

Wood  V.  Taylor 178 

Wood  V.  Wood 652,  653,  657 

Woodall   V.   Clifton 665 

*Woodbridge  v.   Jones 648 

Woodcock 's  Appeal   593 

Woodhouse    v.    Spurgeon 205 

Woodruff  V.  Water  Power  Co..  .   219 

Woodruff   V.    Woodruff 222 

Woods  V.   Soucy 

237,   245,   248,   249,  2.53 

Woodstock   Iron   Co.   v.   Fullen- 

wider   390 

Woodward  v.  Cone .  .  .  247,  248,  254 
Wooldridge's  Heirs  v.  Watkins  630 

Wren    v.   Bradley 750 

Wright   T.   Pearson 429 

Wright  V.  Wilkin 222 

Wright  V.  Wright 173 

Wrightson,  In  re 98 

Wrightson  v.   Macaulay 572 

Wyeth    V.   Stone 590,  593 

Wyneh,  Ex  parte 187 

Wyndham  v.  Wyndham 208 

Xander  v.  Easton  Trust  Co....   187 

*  Yates   V.   Compton 622,628 

Yates  V.  Phettiplace 497 

Yelverton  v.  Yelverton 63 

Youman  's  Will,  In  re 190 

Young   V.   Davies 196 

Young   V.   Harkleroad 

106,  472,  482,  .552,  565,  571 

Young  V.   Snow 678,  732 

*  Young  V.  Waterpark 616 


Wintle,   In   re 513       Young  v.  Young 309,  358 

Young's  Settlement,  Re 734 

*Younghusband  v.   Gisborne. ...   731 

Zabriskie   v.   Wood 407 

Zebach  v.  Smith 629 

Zuver  V.   Lyons 187 


Wiseot  's    Case    314 

Wisdom    V.  Becker 620 

Wistar  v.   Scott 575,  577 

Witham    v.   Brooner 69,  453 

Wolfe   V.    Hines 628 


Ixxxvi 


Conditional  and  Future  Interests 

And 

Illegal  Conditions   and   Restraints 
in  Illinois 


BOOK  I. 


INTRODUCTION  TO  THE  LAW  OF  ESTATES 
AND  FUTURE  INTERESTS. 


Prefatory  Statement:  It  will  be  assumed  that  the  Roman 
occupation  of  Britain  left  no  vestige  of  the  Roman  law  there 
and  that  no  remnants  of  the  Anglo-Saxon  law  of  property  have 
so  far  survived  in  America  as  to  make  any  reference  to  that 
law  necessary,  A  beginning  is  made,  then,  with  the  feudal 
system  of  land  law  introduced  into  England  by  the  Normans 
after  the  Conquest.  The  distinctly  feudal  land  law  flourished 
and  developed  between  the  time  of  William  the  Conqueror  and 
that  of  Henry  VIII.  During  the  first  half  of  this  period,  from 
1066  to  1300,  the  more  important  and  vital  subjects  of  land 
law  related  to  feudal  tenure  and  its  incidents.  After  1300  the 
development  of  estates  in  land  and  conveyance  became  perhaps 
the  predominant  feature  of  the  law.  In  the  reign  of  Henry 
VIII.  forces  which  had  been  gaining  headway  for  more  than  a 
century  laid  the  foundation  for  a  freedom  in  conveying  land 
and  creating  interests  in  it  which  had  not  before  existed,  and 
which  made  the  beginning  of  our  modern  law  of  estates  and  con- 
veyance. Within  the  last  century  legislation  has  taken  steps 
in  many  directions  to  simplify  and  make  more  rational  modes 
of  conveyance,  and  to  increase  the  liberty  of  the  individual  in 
creating  interests  in  land.    Thus,  the  general  course  of  evolution 

Kales  Fut.  Int.— 1  1 


INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY 

has  been  from  a  system  of  fevidal  land-law,  in  which  the  creation 
of  estates  in  land  and  the  modes  of  conveyance  were  restricted, 
to  a  modern  freedom  in  both  respects.  It  is  the  purpose  of  this 
introduction  to  set  out  the  general  outlines  of  this  evolution,  and 
more  particularly  to  emphasize  the  way  in  which  the  modern 
law  permitting  greater  freedom  in  the  creation  of  future  inter- 
ests in  land,  emerged  from  the  restrictions  and  limitations  of  the 
feudal  land  law. 


CHAPTER  I. 
THE  FEUDAL  LAND  LAW. 

TITLE    I. 
TENURE  AND  ITS  INCIDENTS. 

§  1.  The  feudal  system  of  tenures:  Tt  Avas  an  essential 
feature  of  the  feudal  system  in  England  that  all  lands  were 
held  mediately,  or  immediately,  of  the  king:.i  This  condition 
of  land  holding  was  introduced  into  England  after  the  Norman 
Conquest  in  two  ways:  first,  by  the  confiscation  of  lands  by  the 
crown  and  the  regranting  of  them  by  the  crown;  second,  by  the 
voluntary  surrender  of  lands  by  owners,  and  the  receiving  of 
them  back  from  the  crown  as  feudal  tenants,  subject  to  the  obli- 
gations which  the  feudal  system  imposed.  By  this  means  the 
king  became  the  feudal  lord  paramount  of  all  England.-  The 
feudal  tenants  who  held  immediately  of  the  king  Avere  the 
great  feudal  overlords,  and  were  called  tenants  in  capite.  They 
in  turn  granted  estates  to  feudal  tenants  who  held  under 
them,  and  these,  in  turn,  might  have  feudal  tenants  under 
them.  The  tenant  on  the  land  was  known  as  the  tenant  paravail. 
He  was  supposed  to  make  avail,  or  profit,  out  of  the  land.  The 
tenant  between  the  king  and  the  tenant  paravail,  was  a  mesne, 
or  intermediate  tenant.^ 

The  existence  of  this  system  of  tenures,  or  feudal  holding, 
under  another  became  universal.  There  were  three  kinds  of 
tenures.  Each  fulfilled  a'  different  function  in  the  feudal 
organization.  There  were  miUtary  tenures,  socage  tenures,  and 
frunkalmoigne  tenures.  These  tenures  were,  however,  compara- 
tively empty  relations  apart  from  the  incidents  and  services 
attached  to  them.  The  vital  and  practical  importance  of  tenure 
was  not  that  it  established  an  intangible  relation  between  the 

iCo.  Lit.  65a;  2  Bl.  Com.  59,  60;  -'2  Bl.  Com.  59. 

1    Gray's   Cases  on   Prop.,   2n(l   cil.  ^2    Bl.    Com.    59,    60;    1    Gray's 

307.  Cases  on  Prop.,  2nd  ed.  307,  308. 

3 


§  2 J  INTRODUCTION    TO   THE  LAW    OP   RE.IL   PROPERTY        [Ch.  I 

lord  and  the  tenant,  but  that  it  fixed  the  character  of  the  serv- 
ices which  the  tenant  rendered  to  the  lord.  When,  therefore,  the 
feudal  system  was  in  full  life  the  determination  of  the  tenure 
by  which  land  was  held  was  the  same  as  a  determination  of  the 
incidents  and  services  which  one  holding  by  that  tenure  must 
render  to  the  lord. 

§2.  Military  tenures — necessary  services:  Military  ten- 
ures existed  where  land  was  held  by  knight  service.  This  was  the 
most  honorable  tenure.  Of  this  tenure  Pollock  and  Maitland 
say :  ^  "  By  far  the  greater  part  of  England  is  held  of  the  King 
by  knight's  service,  {per  servitum  militaire).  It  is  compara- 
tively rare  for  the  king 's  tenants  in  chief  to  hold  any  of  the  other 
tenures.  In  order  to  understand  this  tenure  we  must  form  the 
conception  of  a  unit  of  military  service.  That  unit  seems  to  be 
the  service  of  one  knight,  or  fully  armed  horseman  (servitum 
unius  militis)  to  be  done  to  the  king  in  his  army  for  forty  days 
in  the  year,  if  it  be  called  for.  In  what  wars  such  service  must 
be  done,  we  need  not  here  determine ;  nor  would  it  be  easy  to  do 
so,  for  from  time  to  time  the  king  and  his  barons  have  quarrelled 
about  the  extent  of  the  obligation,  and  more  than  one  crisis  of 
constitutional  history  has  this  for  its  cause.  It  is  a  question, 
we  may  say,  which  has  never  received  anj'  legal  answer. ' '  Other 
services  which  belonged  to  military  tenures  were  homage  and 
fealty.^  The  first  was  the  formal  oath  which  the  tenant  who  had 
a  fee  simple  rendered  to  his  lord.  Fealty  was  the  less  formal 
oath  exacted  from  a  life  tenant. 

§  3.  Incidents  of  military  tenure :  The  incidents  of  mili- 
tary tenure  were  as  follows:  Aids,  relief,  primer  seizin,  fines, 
wardship,  marriage,  and  escheat.  All  but  the  last  are  thus 
described  by  Pollock :  ®  "  First  there  were  payments  called 
aids:  "^  in  the  theory  of  our  earlier  authors  they  were  offered 
of  the  tenant's  free  will,  to  meet  the  costs  incurred  by  the  lord 
on  particular  occasions ;  but  they  settled  into  a  fixed  custom 
afterwards  if  they  had  not  really  done  so  when  those  authors 

4  1  PoUoek  &  Maitland 's  History,  5  Lit.     §§85,     90-93,    95,    97;     1 

2n(i    ed.    254^    1    Gray's    Cases    on  Gray's  Cases  on  Prop.,  2nd  ed.  31.3, 

Prop.,  2nd  ed.  312.     Sec  also,   Lit.  314. 

§§9.5,  97;   Co.  Lit.  72b;   Lit.  §§98,  6  Pollock  on  Land  Laws,  60,  61. 

100,    110-112;    1    Gray's    Cases    on  ^2  Bl.  Com.   63;   1  Gray's  Cases 

Prop.,  2nd  cd.  312,  313.  on  Prop.,  2nd  ed.  315,  316. 


Ch.  1]  FEUDAL    LAND    LAW  [§4 

wrote.  The  occasions  in  question  were  the  ransoming  of  the 
lord  from  captivity;  the  knigliting  of  his  eldest  son,  'a  matter 
that  was  formerly  attended  with  great  ceremony,  pomp,  and  ex- 
pense,' and  the  marriage  of  his  eldest  daughter.  The  amounts 
payable  for  the  two  latter  purposes  were  assessed  at  the  fixed 
proportion  of  a  twentieth  of  the  assumed  annual  value  of  the 
holding  by  statutes  of  the  thirteenth  and  fourteenth  centuries. 
Then  there  was  the  relief  ^  payable  by  an  heir  of  full  age  on  his 
entry,  which  likewise  became  fixed  at  an  early  time.  In  the  case 
of  land  held  of  the  crown,  the  king  also  took  a  year's  profits, 
which  was  called  primer  seisin,^  and  a  fine  '"  was  payable  by  the 
tenant  on  every  alienation  of  the  land.  If  the  heir  was  under 
age,  the  king  or  other  lord  became  the  guardian  of  both  the 
heir  and  estate,  and  rendered  no  account  of  the  profits;  on 
the  heir's  coming  of  age  a  fine  was  payable  to  the  guardian  for 
quitting  the  land.  This  privilege  of  the  lord,  in  many  cases 
a  highly  lucrative  one,  was  called  wardship ;  and  incident  to  it 
was  the  right  of  disposing  of  the  ward  in  marriage,  which  ap- 
pears to  have  been  commonly  treated  as  a  matter  of  sale  and 
barter  in  the  guardian's  interest."  ^^  The  return  of  the  land 
to  the  lord  when  the  tenant  died  without  heirs,  was  termed 
escheat. ^^  As  lands  during  the  feudal  period  could  not,  except 
in  a  few  cases  by  special  custom,  be  devised  by  will,  escheat  must 
have  been  a  profitable  incident  for  the  lord.  Furthermore,  un- 
der the  feudal  law  the  failure  of  heirs  could  much  more  easily 
occur  than  at  the  present  time.  The  tenant's  heirs  might  fail 
by  attainder.  This  occurred  where  the  tenant  was  hung  for 
crime,  abjured  the  realm,  or  became  an  outlaw.  So,  if  the  ten- 
ant were  illegitimate  and  died  without  heirs  of  his  body,  there 
was  a  real  failure  of  heirs,  for  an  illegitimate  person  could  have 
no  collateral  heirs.  So,  if  the  tenant  died  leaving  relatives  who 
were  aliens,  there  wo\ild  be  an  escheat,  for  they  could  not  be 
his  heirs. 

§4.  Socage  tenures — Several  kinds:  Petit  Serjeanty:  The 
tenant  in  socage  held  of  the  king,  to  whom  he  yielded  a  trifle 
in  lieu  of  rent  and  services. ^-"^    Borough  Eytglish:   The  youngest 

8  2  Bl.  Com.  6.j;    1  Gray's  Cases  ^^  Id.  317-320. 

on   Prop.,  2nd  ed.  316.  is/rf.  320. 

n/rf.  317.  13  Lit.   §159;    1    Grav's   Cases   on 

10  Id.  320.  Prop.,  2ud  ed.  322. 


§  5]  INTRODUCTION    TO    THE  LAW    OF   REAL,   PROPERTY        [Ch.  1 

SOU  iulierited  the  laud  upou  the  death  of  the  teuant.^^  Burgage: 
Land  iu  an  ancient  borough  held  of  the  king  by  a  certain  fixed 
Tpnt.i^  Gavel  kind:  All  the  sons  inherited  equally.  If  there 
were  no  sons,  all  the  daughters  inherited  equally.  There  was 
no  escheat  in  case  of  felony.  Lands  held  by  this  tenure  could 
be  disposed  of  by  wilL^"  By  Divine  Service:  The  religious  serv- 
ices were  definite  and  the  incidents  of  this  tenure  limited.  ^"^ 

§  5.  Services  and  incidents :  Socage  tenure  was  adapted  to 
the  peaceful  occupations  of  the  feudal  order.  The  feudal  tenant 
in  socage  rendered  to  the  overlord  a  certain  or  definite  service, 
or  a  certain  or  fixed  rent,  in  lieu  of  all  services. ^^  In  this  way 
the  burden  was  precisely  known  and  did  not  involve  the  de- 
parture of  the  tenant  from  the  land  to  take  part  in  military  con- 
flicts. Homage  was  seldom  rendered  by  a  tenant  in  socage. 
Fealty  was  the  usual  service. ^^ 

The  regular  incidents  of  socage  tenure  are  thus  described  by 
Pollock:  -^  "In  the  case  of  non-military  free  tenure,  a  relief  -^ 
of  a  year 's  rent  was  payable  where  a  rent  in  money  or  kind  was 
reserved,  and  primer  seisin  if  the  land  was  immediately  held  of 
the  crown;  22  and  the  aids  for  the  knighthood  of  the  lord's  eldest 
son,  or  marriage  of  his  eldest  daughter,  were  also  due.  But 
the  rules  of  guardianship  were  quite  different;  the  guardian 
in  socage  was  not  the  lord,  but  the  nearest  of  kin  to  the  heir 
among  those  to  whom  the  land  could  not  possibly  descend,  the 
wardship  lasted  only  till  the  heir  was  fourteen  years  old  (when 
he  was  free  to  chose  his  own  guardian  until  full  age),  and,  most 
important  of  all,  the  guardian  was  accountable.  '  Such  guardian 
in  socage,'  says  Littleton,  'shall  not  take  any  issues  or  profits 
of  such  lands  or  tenements  to  his  own  use,  but  only  to  the 
use  and  profit  of  the  heir ;  and  of  this  he  shall  render  an  account 
to  the  heir,  when  it  pleaseth  the  heir,  after  he  accomplisheth 

14  7(7.323.  19  Lit.      §§118-120,      130-132;      1 

i-Lit.  §§162-164;  1  Gray's  Cases  Gray's  Cases  on  Prop.,  2nd  ed.  321, 

on  Prop.,  2nd  ed.  322,  323.  322. 

16  Lit.    §265;    2   Bl.    Com.    84;    1  20  Land  Laws,  61. 

Gray's  Cases  on  Prop.,  2nd  ed.  324-  21  Lit.  §§  126-129;  1  Gray's  Cases 

325.  on  Prop.,  2nd  ed.  323. 

"Lit.   §137;    1   Gray's  Cases  on  22  Co.  Lit.  §  77a;   1  Gray's  Cases 

Prop.,  2nd  ed.  326.  on  Prop.,  2nd  ed.  323-324. 

18  Lit.  §§  117,  120;  1  Gray's  Cases 
on  Prop.,  2nd  ed.  321. 


Oil.  I]  FEUDAL    LAND   LAW  [§7 

the  age  of  fourteen  years.'  "  -^  There  was  no  incident  of  mar- 
riage. Whether  there  were  aids  or  not  has  been  the  subject  of 
dispute.  Fines  and  escheat,-*  however,  existed  as  under  military 
tenures. 

§6.  Frankalmoigne  tenure:  Land  was  held  by  frankal- 
moigne  tenure  when  it  was  held  in  return  for  general  religious 
services  which  were  voluntary  on  the  part  of  the  tenant.^^  The 
tenant  was  a  religious  corporation.  There  were  practically  no 
incidents  at  all  to  frankalmoigne  tenure.-*^  There  might  pos- 
sibly have  been  aids.  Fines  might  have  existed  if  the  corpora- 
tion were  allowed  to,  or  did  in  fact,  alienate.  Escheat  it  would 
seem  clearly  must  have  existed.  Thus,  upon  the  dissolution  of 
a  corporation  still  possessed  and  entitled  to  lands,  it  would  seem 
that  they  would  escheat  to  him  of  whom  the  land  were  held  or 
his  heirs.  .  It  was  said,  however,  by  Coke  that  the  land  did  not 
escheat  to  the  lord,  but  that  upon  the  dissolution  of  the  corpora- 
tion it  passed  to  the  donor. 2"  The  fact,  however,  was  that  since 
no  new  frankalmoigne  tenures  could  be  created  after  the  Stat- 
ute of  Q'uia  Emptores  in  1290,  all  religious  corporations  held 
their  lands  of  the  donor  or  his  heirs.  Hence,  when  they  were 
dissolved,  an  escheat  was  in  fact  to  the  donor.  As  the  ecclesias- 
tical corporations  were  practically  the  only  corporations,  Coke's 
general  statement  that  upon  the  dissolution  of  a  corporation  the 
land  returned  to  the  donor,  was  in  fact  a  statement  that  the 
land  escheated.  The  English  courts,  in  the  time  of  Coke  him- 
self, so  held.-s 

§  7.  Effect  of  the  Statute  of  Quia  Emptores  (1290) :  The 
Statute  of  Quia  Emptores  permitted  free  alienation  by  tenants 
in  fee  simple,  prohibited  the  creation  of  any  further  frankal- 
moigne tenure  except  by  the  king  and  stopped  subinfeudation. 
The  effect  of  the  Statute  is  thus  described  by  Pollock:  29  "The 
Statute  of  Quia  Emptores  passed  in  1290,  and  one  of  the  great 
statutes  of  Edward  I.  was  made  in  the  interests  of  the  great 

23  Lit.   §123;    1  Gray's  Cases  on       Gray's  Cases  on  Prop.,  2nd  ed.  326. 

Prop.,  2nd  ed.  324.  2'  Co.  Lit.  13b. 

2*2  Bl.  Com.  89;   1  Gray's  Cases  28  Johnson  r.  Norway,  Winch.  37 

on  Prop.,  2nd  ed.  324.  (1622);    Gray's   Eule   against   Per- 

25  Lit.   §135;    1  Gray's  Cases  on       petuities,  §50. 
Prop.,  2nd  ed.  326.  29  Land  Laws,  67-70. 

26  (No     fealty.)     Lit.     §131;  1 


§  7]      INTRODUCTION  TO  THE  L^VW  OP  REAL  PROPERTY   [Ch.  I 

feudal  overlords.  It  dealt  a  heavy  blow  to  the  eoiisistency  and 
elegance  of  the  feudal  theory,  but  made  the  conditions  of  land 
tenure  far  more  simple.  It  was  the  first  approximation  of  feudal 
tenancy  to  the  modern  conception  of  full  ownership.  Before 
1290  the  feudal  tenant  who  alienated  the  whole  of  his  land  put 
the  new  tenant  in  his  place,  as  regards  the  lord;  but,  if  he 
alienated  a  part  only,  the  effect  was  to  create  a  new  and  distinct 
tenure  by  suhinfeiidation,  as  it  is  called.  Thus,  if  the  king 
granted  a  manor  to  Bigod,  and  Bigod  granted  a  part  of  it  to 
Pateshull,  Bigod  was  tenant  as  regards  the  king,  and  lord  as  re- 
gards Pateshull.  Bigod  remained  answerable  to  the  king  for 
the  services  and  dues  to  be  rendered  in  respect  of  the  whole 
manor,  and  Pateshull  to  Bigod  in  respect  of  the  portion  Bigod 
liad  granted  him.  Pateshull,  again,  might  grant  over  to  Spigor- 
nel  a  portion  of  what  he  had  from  Bigod,  and  as  to  that  portion, 
would  be  Spigornel's  lord,  and  Spigornel  would  be  his  tenant. 
A  person  who,  being  himself  a  tenant,  is  lord  of  under-tenants, 
is  called  a  mesne  lord.  These  under-tenants  were  constantly 
multiplying,  and  not  only  titles  became  complicated,  but  the 
interests  of  the  superior  lords  were  gravely  affected.  The  lord's 
right  to  the  services  of  his  tenant  were  in  themselves  unchanged 
by  subinfeudation ;  but  his  chance  of  getting  them  practically 
depended  on  the  punctuality  of  the  under-tenants,  against 
whom  he  had  no  personal  rights,  in  rendering  their  contribu- 
tions to  the  immediate  tenant.  The  profits  coming  to  him  by 
escheat,  marriage  of  wards,  and  wardship,  were  also  diminished. 
Many  years  before  the  statute  in  question  the  great  lords  had 
thought  themselves  ill-used  in  this  matter.  It  was  provided  by 
Magna  Charta  that  no  free  tenant  should  alienate  more  of  his 
holding  than  would  leave  him  enough  to  perform  the  services — 
this  shows,  by  the  way,  that  at  the  beginning  of  the  thirteenth 
century  feudal  services  and  dues  had  ceased  to  represent  any- 
thing like  the  full  annual  value  of  the  land.  But  this  was  found 
inadequate  by  the  superior  lords,  and  in  1290  the  law  was  funda- 
mentally changed.  It  Avas  enacted  that  every  free  man  might 
thenceforth  dispose  at  will  of  his  tenement,  or  any  part  thereof, 
but,  so  that  the  taker  should  hold  it  from  the  same  chief-lord 
and  by  the  same  services.  The  incomer  became  the  direct  tenant 
of  the  chief-lord,  and  liable  to  him,  and  to  him  only,  for  a  pro- 

8 


(jll.  1]  FEUDAL    LAND    LAW  [§9 

portionate  part  of  the  services  due  in  respect  of  the  original 
holding." 

§  8.  Effect  of  the  Statute  of  Charles  II:  During  the  thr.ee 
centuries  following  the  Statute  of  (Juiu  Emptores  there  was  a 
general  tendency  toward  the  commutation  of  services  exacted 
from  lands  held  by  military  tenure  into  such  fixed  eseuage  as 
parliament  might  assess,  and  the  gradual  disappearance  of  some 
of  the  incidents  of  tenure,  especially  of  military  tenure.  Thus 
fealty  and  relief  in  socage  tenure  became  obsolete.  Military 
tenures  themselves  were,  however,  entirely  swept  away  by  the 
Statute  of  12  Charles  II.,  e.  24  (1660).3'^  That  abolished  all 
military  tenures  and  their  incidents,  except  certain  honorary 
services  relating  to  grand  serjeanty.  It  turned  all  military 
tenures  into  common  socage  tenures.  The  statute  had  no 
effect  on  socage  tenures  except  to  do  away  with  socage  fines  and 
aids.  Fealty  and  relief  in  socage  tenures  had  become  obsolete 
so  that  escheat  was  the  only  incident  Avhich  remained.  The 
guardianship  in  socage  was  developed  and  improved  by  permit- 
ting the  father  to  appoint  persons  of  his  own  choice  to  be  his 
children's  guardians  after  his  death,  if  he  left  them  under  age. 
This  is,  indeed,  the  basis  of  the  modern  law  of  guardianship. 
The  Statute  of  Charles  II.  prohibited  even  the  king  from  grant- 
ing land  in  frankalmoigne  tenure.  As  far  as  there  was  any  fine 
incident  to  frankalmoigne  tenure  it  was  abolished. 

§  9.  Tenure  in  the  United  States:  If  there  is  in  this  coun- 
try any  tenure  between  the  o^nier  of  lands  in  fee  and  another, 
that  other  is  the  state,  for  the  Statute  of  Quia  Emptores  is  in 
force  prohibiting  subinfeudation  and  the  state  has  taken  the 
place  of  the  crown.^i  The  single  incident  of  tenure  left  is 
escheat.-  The  statutes,  however,  are  so  general,  providing  for 
an  escheat  to  the  state,  that  land  as  a  matter  of  fact  might  be 
held  allodially— that  is,  without  any  tenure— and  the  escheat  be 
the  result  of  the  statute. 

30  1  Gray's  Cases  on  Prop.,  2nd  Hays,  19  N.  Y.  68,  73;  1  Gray's 
ed.  327.  Cases  on  Prop.,  2nd  ed.  330,  331. 

31  Denio,  J.,  in  Van  Rensselaer  r-. 


§  10 j  INTRODUCTION    TO    THE   LAW   OF    REAL   PROPERTY        [Ch.  I 

TITLE   II. 
SEISIN  IN  ITS  RELATION  TO  ESTATES. 

§  10.  Seisin  defined  in  relation  to  estates :  Today  owner- 
ship, as  distinguished  from  possession,  is  the  important  matter 
ill  the  hiw  of  real  property.  Ownership  is  protected.  Owner- 
ship, and  not  possession,  is  what  contributes  to  the  state  in  the 
way  of  taxes.  Social  organization  is  built  up  upon  ownership. 
Under  the  feudal  system  quite  the  reverse  was  the  case.  The 
feudal  state  depended  upon  the  performance  of  services  and  the 
personal  rendering  of  the  feudal  dues.  The  only  practical  way 
of  determining  who  was  responsible  for  these  was  to  look  to 
the  physical  possession  of  the  land.  "Whoever  was  in  possession, 
claiming  an  interest  which  carried  with  it  the  performance  of 
the  feudal  dues,  was  the  person  from  whom  the  feudal  dues 
might  be  exacted.  Since  the  maintenance  of  the  state  was  based 
upon  the  rendering  of  the  feudal  services  by  the  person  in 
possession  claiming  the  feudal  estate,  it  was  inevitable  that 
such  feudal  possession  should  be  protected  in  much  the  same 
way  that  we  today  protect  ownership  as  distinguished  from 
possession.    This  feudal  possession  was  called  seisin. 

By  the  time  of  Edward  I.  the  estates  or  interests  to  which 
the  feudal  dues  attached  had  become,  to  a  certain  extent,  differ- 
entiated so  that  there  were  three  of  them — the  fee  simple,  the 
fee  tail,  and  the  estate  for  life.  These  were  called  freehold  es- 
tates. They  might  with  propriety  be  called  feudal  estates  because 
they  were  the  different  sorts  of  estates  which  the  feudal  system 
recognized  as  carrying  with  them  feudal  services  and  dues,  de- 
pending of  course,  upon  the  tenure  under  which  they  were  held. 
The  statement  that  scisi^i  is  "possession  claiming  a  freehold," 
now  becomes  intelligible.  Freeholds  were  feudal  estates,  the  pos- 
session of  which  carried  the  feudal  dues.  Seisin  is  the  possession 
which  determines  what  feudal  dues  shall  be  rendered.  Hence 
"possession  claiming  a  freehold,"  is  possession  of  a  character 
which  fixes  the  feudal  dues. 

In  contrast  with  the  freehold  or  feudal  estates  were  the  es- 
tates less  than  freehold,  or  non-feudal  estates.  These  were  terms 
for  years  and  estates  at  will.  Possession  of  these  did  not  involve 
the  payment  of  any  feudal  dues.     In  fact  the  feudal  system  did 

10 


ClI.  1]  FEUDAL    LAND   LAW  [§11 

not  at  first  recoguize  auy  such  estates,  nor  was  the  possession  of 
the  tenant  for  years,  or  tenant  at  will,  protected  in  any  way. 
Tenants  for  years,  or  at  will,  did  not  have  any  right  of  property 
at  all  until  the  thirteenth  century.^^ 


Topic  1. 

Estates  in  Possession — Freehold,  Less  Than  Freehold,  and 
Joint  Interests, 

§  11.  Freehold  estates — fee  simple:  From  the  feudal  point 
of  view,  this  was  an  estate  which  passed  upon  the  death  of  the 
one  seized  of  it  to  whoever  among  his  lineal,  or  collateral,  rela- 
tions was  his  heir  at  law,  and  when  that  person  became  seized 
in  his  turn  of  the  fee  simple  and  died,  the  land  would  pass  by 
descent  in  the  same  way  to  his  heir  at  law.  The  estate  was 
created  by  this  form  of  gift :  "  To  A  and  his  heirs. ' '  The  phrase 
"and  his  heirs"  expressed  the  intent  that  A  and  his  heirs  for- 
ever were  to  enjoy  the  land.  In  the  feudal  land  law,  when 
alienation  iriter  vivos  was  restricted,  A  and  his  heirs  could  take, 
for  the  most  part,  only  by  the  succession  of  inheritances.  The 
words  "and  his  heirs"  were  called  words  of  limitation  since  they 
operated  merely  to  define  the  character  of  A's  interest. 

It  M-as  the  rule  of  the  feudal  land-law  that  the  use  of  the 
word  "heirs"  was  necessary  to  create  a  fee  simple.  Words 
which  expressed  the  intent  that  A  should  have  an  "absolute 
estate,"  or  a  "fee  simple,"  or  an  estate  "forever,"  were  insuf- 
ficient to  create  an  estate  in  fee  simple  when  the  word  "heirs" 
was  omitted.  The  use  of  any  expression  which  did  not  contain 
the  word  "heirs,"  no  matter  how  emphatic,  resulted  only  in 
the  creation  of  an  estate  for  life.-'^^  The  rule  that  the  word 
"heirs"  was  necessary  to  the  creation  of  a  fee  simple  in  a 
conveyance  inter  vivos  has  persisted  down  to  modern  times.  In 
this  country  statutes,  dating  back  now  for  a  century  or  more, 
liave  abolished  the  rule,  and  usually  provide,  in  substance,  that 
a  conveyance  shall  operate  to  transfer  a  fee  simple  unless  a 
contrary  intent  expressly  appears. 

32  Post,  §  21, 

33  Lit,    §  1 ;    1    Gray 's    Cases    on 
Prop.,  2nd  ed.  332, 

11 


§  12]     INTRODUCTION  TO  THE  L.^W  OP  REAL  PROPERTY    [Ch.  I 

§12.     Fee   simple  subject   to   a  condition  subsequent:     It 

seems  to  have  been  permissible  from  the  earliest  period  of 
the  feudal  land  law  to  create  a  fee  simple  subject  to  a  condi- 
tion subsequent,  upon  the  breach  of  which  the  fee  simple  would 
come  to  an  end  and  the  creator  of  the  fee,  or  his  heirs,  would 
have  a  right  to  enter  and  effect  a  forfeiture.  It  was,  of  course, 
a  necessary'  corollary  to  the  validity  of  such  a  limited  fee  simple 
that  the  right  of  entry  on  the  breach  of  the  condition  was  a 
valid  future  interest  in  the  land.^"* 

§  13.  The  fee  simple  determinable  or  base  fee :  Before  the 
Statute  of  Quia  Emptores  stopped  suhinjeudation  it  is  probable 
that  a  fee  simple  to  last  for  an  indefinite  length  of  time — viz., 
till  a  certain  tree  sliould  fall — might  be  created,  leaving  a  right 
of  reverter  in  the  creator  of  the  estate  or  his  heirs.  This  resulted 
in  a  different  situation  from  that  where  the  fee  was  subject 
to  a  condition  subsequent.  There  the  fee  was  subject  to  be 
defeated  by  the  breach  of  the  condition  subsequent.  The  fee 
did  not  ipso  facto  come  to  an  end  upon  the  happening  of  the 
condition,  but  did  so  upon  the  entry  of  the  creator  of  the 
estate  or  his  heirs.  The  fee  simple  determinable,  however,  came 
to  an  end  ipso  facto  by  the  happening  of  the  events  which  speci- 
fied the  ultimate  limit  of  its  existence.  The  right  to  create  such 
a  fee  before  the  Statute  of  Quia  Emptores  was  justified  upon 
the  ground  that  the  transferee  of  such  a  fee  held  of  the  trans- 
feror. Some  controversy  has  of  late  occurred  among  distin- 
guished writers  as  to  whether  there  could  be  created,  since  the 
Statute  of  Quia  Emptores,  such  a  determinable  or  base  fee. 
Gray  maintains  that  logically  such  a  fee  could  not  be  created 
because  there  could  be  no  tenure  between  the  feofor  and  feofee. 
He  produces  some  authority  to  that  effect.  On  the  other  hand, 
less  logic,  but  more  alleged  authority,  is  produced  to  show  that 
the  courts  did  actually  permit  such  base  or  determinable  fees 
to  be  created  after  the  Statute  of  Quia  Emptores^"  In  this 
country  it  has  been  assumed,  and  in  some  cases  actually  held, 
that  when  there  has  been  a  gift  of  land  to  a  charitable  corpora- 
tion which  dissolves  without  transferring  its  property,  the  fee 
of  the  corporation  comes  to  an  end  upon  the  dissolution  of  the 

3<Po«t,  §23.  ties,  §§31-42,  744  et  seq.;  1  Gray's 

85  Gray's   Bule   against   Perpetui-       Cases  on  Prop.,  2nd  ed.  339. 

12 


Cn.  I]  FEUnAL    LAND    LAW  [§16 

corporation,  and  in  that  event,  ipso  facto,  reverts  to  the  donor 
or  to  his  heirs."'*' 

§  14.  Fee  tail — Introductory:  There  have  been  four  stages 
in  the  history  of  the  estate  tail:  First,  its  position  before  the 
Statute  De  Donis,'^~  as  a  conditional  fee  simple ;  second,  its 
origin  under  the  Statute  De  Bonis  as  an  estate  tail ;  third,  the 
struggle  to  make  the  estate  tail  alienable  in  fee  simple ;  fourth, 
modern  legislation. 

§  15.  Before  the  Statute  De  Donis:  If,  before  the  Statute 
De  Donis,  the  landowner  attempted  to  make  a  settlement  of  lands 
so  that  they  could  be  enjoyed  only  by  A  and  the  heirs  of  his 
body,  the  effect  was  to  permit  the  descent  of  the  land  from  A 
to  his  lineal  heirs  in  infinitum  so  long  as  they  should  last.  When 
the  line  of  lineal  heirs  ceased  to  exist,  the  fee  would  go  to  the 
original  creator  of  the  estate  or  his  heirs.  Before  the  Statute 
De  Donis  the  estate  so  attempted  to  be  created  in  A  was  a  fee 
simple  conditional.  It  was  a  fee  simple  in  A  which  was  subject, 
however,  to  be  terminated  when  A  ceased  to  have  any  lineal 
heirs.  If  the  intent  expressed  had  been  fully  carried  out  no 
alienation  in  foe  simple  of  the  land  so  limited  would  have  been 
permitted  to  interfere  with  the  ultimate  return  of  the  fee  to 
the  creator  of  the  estate.  But  the  courts  did  not  enforce,  to 
this  extent,  the  expressed  intent.  They  held  that  as  soon  as 
issue  were  born  to  A,  A  had  a  fee  simple  which  he  could  alienate 
so  as  to  deprive  his  issue  and  prevent  any  return  of  the  fee 
to  the  donor.^^ 

§  16.  Origin  of  the  estate  tail  under  the  Statute  De  Donis : 
The  law,  as  it  existed  before  the  Statute  De  Donis,  was  unsat- 
isfactory to  the  lando^^^ler  who  washed  to  perpetuate  the  owTier- 
ship  of  his  lands  in  his  lineal  issue  forever  by  making  the  land 
inalienable  in  the  hands  of  successive  lineal  heirs.  The  Statute 
De-  Donis  was  secured  for  the  purpose  of  effecting  this  object. 
It  provided  that  where  there  was  a  conveyance  "to  ^  and  the 
heirs  of  his  body,"  the  intent  as  expressed  .should  be  carried 
out,  and  that  neither  A  nor  his  issue  should  have  any  power  to 
alienate  the  land  so  as  to   prevent   the  continued  descent  to 

36  Posf.  §  802.  38  Co.  Lit.  §  19a;  Leake,  Digest  of 

37  Stat.  13  Edw.  I.  ch.  I.  1285;  Land  Law,  35;  1  Gray's  Cases  on 
1    Gray's   Cases   on   Prop.,   2nd   ed.       Prop.,  2nd  ed.  §§334,  335. 

335. 

13 


§17]  INTRODUCTION    TO    THE   LAW    OF    REAL   PROPERTY        [CiL  I 

lineal  lioirs  of  A,  or  so  as  to  defeat  the  rights  of  whoever  would 
be  ultimately  entitled  to  the  fee  simple  upon  failure  of  A's 
issue.  The  issue  were  given  an  action  to  enforce  their  rights 
against  any  attempted  alienation  made  by  A,  and  the  one  ulti- 
mately entitled  to  the  fee  was  given  an  action  to  enforce  his 
rights  upon  the  failure  of  issue.  The  former  action  was  called 
a  formed  on  en  le  descender,  the  latter,  a  formedon  en  le  re- 
verier.  The  estate  thus  created  by  statute  bcL-ame  and  has 
ever  since  been  called  an  estate  tail.  It  is  improper  to  speak 
of  the  estate  tail  as  a  common  law  estate.  It  is  a  purely  statutory 
estate.  It  was  not  an  estate  tail  until  the  rights  of  the  issue, 
and  the  one  ultimately  entitled  to  the  fee,  were  protected  by  the 
Statute  De  Bonis. 

To  the  creation  of  an  estate  tail  in  a  conveyance  inter  vivos 
it  has  always  been  necessary  that  the  word  "heirs"  be  used. 
No  other  word  or  phrase  will  do.  In  addition  to  the  word 
"heirs"  any  formula  may  be  used  which  shows  that  heirs  are 
to  be  confined  to  lineal  heirs,  or  heirs  of  the  body.  The  donor 
may  create  an  estate  tail  general, 3»  namely,  to  A  and  the  heirs 
of  his  body;  or  an  estate  tail  special, ^^  namely,  to  A  and  the 
heirs  of  his  or  her  body  by  a  particular  wife  or  husband;  or 
an  estate  tail  male  or  female,  namely,  to  A  and  the  heirs  male 
of  his  body ;  or  to  A  and  the  heirs  female  of  his  body.^^ 

§  17.  The  struggle  to  make  the  estate  tail  alienable  in  fee 
simple:  For  almost  a  century  the  Statute  De  Bonis  was  given 
full  effect.  The  result  must  have  been  that  a  large  portion  of 
all  the  land  in  England  became,  or  were  in  process  of  becoming, 
estates  tail,  and  wholly  inalienable  by  any  one  until  there  was 
a  failure  of  issue  and,  by  this  means,  a  termination  of  the 
estate  tail.  This  was  an  intolerable  condition.  Three  ways 
were  found  by  the  courts  to  defeat  the  object  of  the  statute  and 
to  make  the  estate  tail  alienable  in  fee. 

First:  It  was  held  tliat  if  any  one  warranted  an  estate  to 
a  stranger,  if  the  Avarrantor's  heir  was  a  tenant  in  tail,  such 
tenant  was  barred  from  claiming  the  estate  tail  if  assets  had 
descended  on  him  from  the  warrantor.     Even  where  the  war- 

39  Lit.   §§14,  15;    1  Gray's  Cases  4i  Lit.    §§21-24;    1    Gray's   Cases 

on  Prop.,  2nd  ed.  336.  on  Prop.,  2nd  ed.  337,  338. 

4fJLit.  §§16,  17;   1  Gray's  Cases 
on  Prop.,  2nd  ed.  337. 

14 


ClI.  IJ  FEUDAL    LAND    LAW  [§  17 

ranty  had  been  given  by  one  from  whom  the  estate  tail  could 
not  possibly  have  descended  to  the  heir,  the  tenant  in  tail  was 
held  to  be  barred  to  claim  the  estate  tail,  even  though  no  assets 
descended.  This  was  known  as  the  doctrine  of  collateral  war- 
ranty.^- 

Second:     Tiie  courts  allowed  a  collusive  suit  to  be  brought 
by  the  one  to  Avhom  the  tenant  in  tail  wished  to  convey  the 
land  in  fee.     This  was  called  a  common  recovery.     The  judg- 
ment in  this  suit  barred  not  only  the  issue  in  tail,  but  also  all 
reversioners  and  remaindermen.     The  validity  of  common   re- 
coveries to  disentail   laud  was  first  judicially  recognized  about 
147:}.    The  common  recovery  is  thus  described  by  Blackstone :  ^'^ 
"Edwards  being  tenant  in  tail  in  possession  and  being  desirous 
of  barring  the  entail  and  alienating  in  fee  to  Golding,  proceeds 
as  follows:     Golding,  who  is  called  the  demandant,  is  procured 
to  bring  a  writ  of  prcvcipe  against  Edwards,  who  is  called  the 
tenant  to  the  prcecipe,  alleging  that  Edwards  came  into  posses- 
sion after  Hunt  had  turned  the  demandant  out.     The  tenant 
appears   and  calls   Jacob   Moreland,   who   is  supposed,   at   the 
original  purchase  by  the  tenant,  to  have  warranted  his  title, 
and  prays  that  Jacob  Moreland  be  summoned  to  defend.     This 
is  known  as  the  voucher,  Moreland  is  the  vouchee.     Golding, 
the  demandant,  then  demands  leave  to  imparl  with  the  vouchee 
in  private,  after  which  Moreland,  the  vouchee,  makes  default. 
Golding  then  has  judgment   against   Edwards,   the   recoveree, 
and  Edwards  has  judgment  to  recover  of  Jacob  Moreland  land 
of  equal  value."     A  recovery  with  double  voucher  occurred  in 
this  wise:     Edwards  first  conveyed  an  estate  of  freehold  to  an 
indifferent  person  who  becomes  tenant  to  the  prcEcipe.     There 
is  a  writ  of  prcecipe  against  such  tenant  who  vouches  Edwards, 
who  in  turn  vouches  IMoreland.     Golding  recovers  the  land  and 
the   tenant    recovers   against    Edwards,    who    recovers    against 
Moreland.     If  Edwards  is  tenant  in  tail  and  is  vouched,  the 
recovery  bars  every  latent  right  which  Edwards  may  have  in 
the  lands  recovered.-*^ 

'     42  1   Gray's  Cases   on    Prop.,   'Jml  of  the  court  officials  was  known  as 

ed.  338    note.  the   common  vouchee.     It  was  cus- 

43  2  Bl.  Com.  357.  toniary   to   vouch   him    to   warranty 

44  The  warranty  by  Moreland  was  and  judgments  for  lands  of  untold 
fictitious.     In  Blackstone's  time  one  value  stood  against  him. 

15 


§  18]     INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY   [Ch,  I 

Third:  The  Statutes  of  4  Henry  VII.  ch.  24  (1490),  and  32 
Henry  VIII.  eh.  36  (1540),  gave  to  fines  the  same  general 
effect  as  had  been  given  to  common  recoveries.  A  fine  was 
another  sort  of  collusive  suit.  In  it  the  transferor  was  called 
the  conusor,  the  transferee,  the  conusee.  The  fine  was  unlike 
a  recovery,  in  that  it  ended  with  a  concord,  or  compromise, 
instead  of  with  a  judgment.  A  fine  levied  with  proclamations 
in  accordance  with  the  provisions  of  the  statutes  mentioned 
bound  immediately  all  persons  claiming  under  the  conusor,  and 
bound,  unless  claim  was  made  within  five  years,  all  other 
person  s.^^ 

§  18.  The  further  eflfort  to  secure  an  inalienable  estate  tail : 
After  fines  and  recoveries  became  effective  to  bar  the  entail, 
an  attempt  Avas  made  in  creating  the  estate  tail  to  impose  a 
condition  that  upon  the  levying  of  a  fine,  or  suffering  a  re- 
covery, or  taking  any  steps  to  either  end,  the  estate  tail  should 
be  forfeited,  or  go  over  to  another.  This  effort  failed  because 
the  condition  was  held  to  be  an  illegal  ground  for  forfeiture,  since 
it  attempted  the  forfeiture  of  an  estate  upon  a  lawful  aliena- 
tion.^*^ The  word  "perpetuity"  was  first  used  in  the  law  in 
connection  with  this  attempt  to  forfeit  an  estate  tail  if  any 
steps  were  taken  toward  the  levying  of  a  fine,  or  suffering  a 
recovery,  by  the  tenant  in  tail.^"  It  was  said  by  the  judges  that 
this  was  an  attempt  to  create  a  "perpetuity."  Perpetuity  in 
this  sense  meant  the  attempt  to  create  an  alienable  and  inde- 
structible estate  tail. 

Still  the  English  landowner  did  not  give  up  the  struggle  to 
attain  the  practical  objects  of  the  inalienable  and  indestructible 
estate  tail.  By  the  end  of  the  seventeenth  century  what  is 
known  as  the  strict  settlement  had  been  fairly  well  perfected 
in  outline.  This  represents  the  landowner's  final  effort  to 
achieve  an  inalienable  and  indestructible  series  of  estates  in 
the  family.  A,  the  landowner  in  fee,  having  a  son  B,  conveys 
the  property  so  that  the  legal  title  will  vest  in  himself  for 
life  with  a  remainder  to  B  for  life;  with  a  remainder  to  B's 

■43  1   Gray's  Cases   on   Prop.,  2nd  4'Mildmay's     Case,     1     Co.     175 

ed.  338,  note.  (1582) ;  6  Co.  40a  (1605)  ;  1  Gray's 

<6  Co.    Lit.    223b,    224a;     Kales'  Cases  on  Prop.,  2nd  ed.  398;  Kales' 

Cases  on  Future  Interests,  1214,  Cases  on  Future  Interests,  1215,  note. 
note  8. 

16 


Ch.  I]  FEUDAL    LAND   LAW  [§  !•• 

first,  and  other  sons  successively  in  tail  male;  with  other  re- 
mainders to  females  in  tail,  and  an  ultimate  gift  to  A's  right 
heirs.  A  and  B  are  tenants  for  life  and  the  eldest  son  of  B 
is  the  first  tenant  in  tail.  Tpou  A's  death,  B  finds  himself 
tenant  for  life  in  possession,  and  his  infant  son  C  is  the  first 
tenant  in  tail.  C,  even  if  he  Avere  of  a^e,  could  not  bar  the 
entail  without  7?'.s  consent,  because  C  is  not  the  tenant  in  tail 
in  possession.  In  order  to  give  full  effect  to  a  fine,  or  recovery 
to  bar  the  entail,  the  consent  of  the  person  in  possession  to  be 
made  a  tenant  to  the  pr(Ecipe  must  be  obtained.  B  cannot  bar 
the  entail  alone  because  he  has  only  a  life  estate.  When  C 
comes  of  age,  B  proposes  that  C,  in  consideration  of  being  well 
provided  for  during  the  remainder  of  B's  life,  shall  join  with  B 
in  the  barring  of  the  entail  and  making  a  new  settlement  of  the 
estate  so  that  B  shall  be  tenant  for  life  with  a  remainder  to  C 
for  life,  and  a  remainder  to  C's  first  and  other  sons  successively 
in  tail  male,  with  estates  tail  to  the  females,  and  an  ultimate 
gift  over  to  B's  right  heirs.  In  Avell-regulated  families  C  does 
not  refuse.  This  process  is  repeated  from  generation  to  genera- 
tion, and  so  long  as  it  can  be  kept  up,  the  land  is  never  subject 
to  alienation  of  the  fee.  In  this  manner  the  English  convey- 
ancers finally  accomplished  the  practical  objects  of  the  estate 
tail  as  provided  by  the  Statute  De  Donis  with  the  one  qualifica- 
tion that  during  each  succeeding  generation  the  new  tenant  in 
tail  must  consent  to  continuing  the  inalienability  of  the  estate.^^ 
§  19.  Modern  legislation:  In  England  the  estate  tail  lo- 
mains  as  under  the  Statute  De  Donis,  with  a  practical  power  of 
alienation  in  fee  by  the  tenant  in  tail  by  means  of  a  fine  or 
recovery.  The  principal  change  has  been  to  provide  simpler 
methods  of  docking  entails.  Thus,  instead  of  a  fine  or  recovery, 
a  simple  disentailing  conveyance  by  the  tenant  in  tail  is  all 
that  is  required.^^  But  the  rules  applicable  to  fines  and  re- 
coveries so  far  obtain  that  the  tenant  in  tail  can  only  dock 
the  entail  by  a  disentailing  conveyance  where  he  could  do  so 

•««"  Changes   in   the   English   Law  •'f' ■".    and    4    Wni.    IV.    eh,    74;    1 

of  Real  Property  in  the  Nineteenth       Gray's  Cases  on  Prop.,  2nd  ed.  338, 
Centnry,"  by  Arthur  Underhill.    A       note. 
Century    of   Law    Reform,   280-340; 
Three  Select  Essays  in  Anglo- Amer- 
ican Legal  History,  675. 

Kales  F\it.  Int. — 2  ^7 


§19]  INTRODUCTION    TO    THE   LAW   OF    REAL   PROPERTY       [Ch.  I 

by  a  fine  or  recovery.  Hence,  if  he  is  merel.v  the  tenant  in  tail 
in  remainder  and  a  life  tenant  is  in  possession,  the  life  tenant 
must  join  with  him  in  the  disentailing  conveyance,  precisely  as  he 
must  join  with  him  in  the  levying  of  a  fine  or  suffering  a 
recovery. 

In  Massachusetts  the  entailment  is  apparently  good  so  long 
as  the  estate  is  not  conveyed.  The  statute  provides  that  "a 
person  actually  seized  of  lands  as  tenant  in  tail  may  convey 
such  lauds  in  fee  simple  by  a  deed  in  common  form,  in  like 
manner  as  if  he  were  seized  thereof  in  fee  simple,  and  such 
conveyance  shall  bar  the  estate  tail,  and  all  reversions  and 
remainders  expectant  thereon. ' '  ^^  The  Massachusetts  statute 
also  provides  that  where  lands  are  held  by  one  person  for  life, 
with  a  vested  remainder  in  tail  to  another,  the  tenant  for  life 
and  the  remainderman  may  convey  such  lands  in  fee  simple 
by  the  ordinary  form  of  deed  in  like  manner,  as  if  the  re- 
mainder had  been  limited  in  fee  simple,  and  that  such  deed 
shall  bar  the  estate  tail  and  all  reversions  and  remainders  ex- 
pectant thereon.  ^^ 

In  many  American  jurisdictions,  estates  tail  are  in  terms 
abolished  and  turned  into  estates  in  fee  simple.  In  a  few  states 
the  estate  tail  is  made  a  life  estate  in  the  first  taker,  with  a 
remainder  in  fee  simple  absolute  to  the  children  of  the  first 
taker,  or  to  the  person  or  persons  to  whom  the  estate  would 
first  pass  according  to  the  course  of  the  common  law  at  the 
death  of  the  first  taker.^^ 

In  a  considerable  number  of  American  states,  however,  the 
statutes  are  silent  as  to  estates  tail.  What  is  the  state  of  the 
law  in  such  jurisdictions'?  If  the  Statute  De  Bonis  be  regarded 
as  in  force,  under  the  general  rule  that  in  this  country  we 
brought  with  us  the  common  law  as  modified  by  English  statutes 
passed  prior  to  the  first  settlement,  we  should  have  in  these 
jurisdictions  the  estate  tail  as  it  existed  in  England  just  after 
the  Statute  De  Donis.  It  would  logically  follow,  that  the  force 
and  effect  given  to  fines  and  recoveries,  must  also  be  adopted 
and  that  the  whole  law  of  barring  estates  tail,  by  means  of 
fines  and  recoveries,  must  be  incorporated  into  tire  law  of  these 
states.     As  a  practical  matter,  however,   fines  and  recoveries 

50  Public    Stats.    Mass.    1882,    ch.  5i  Id.  §  116. 

120,  §115,  ^•'^Fost,  §402  et  seq. 

18 


ClI.  1]  FEUDAL    LAND    LAW  [§  20 

are  regarded  as  obsolete  in  these  states,  and  the  learning  with 
respect  to  them  is  unknown.  Yet,  if  these  states  recognized 
the  estate  tail,  as  it  was  created  by  the  Statute  De  Donis, 
without  tines  and  recoveries,  or  some  other  method  to  bar  the 
estate  tail,  we  should  have  the  extraordinary  condition  that 
inalienable  and  indestructible  estates  tail  would  still  be  flourish- 
ing at  the  present  day  in  an  American  jurisdiction,  where  they 
are  utterly  inconsistent  with  the  manners  and  customs  of  the 
people. 

In  Iowa,  where  tiie  court  had  to  face  tiie  problem  of  what 
the  law  was  when  the  statutes  were  silent  with  regard  to  estates 
tail,  it  was  held  that  the  Statute  De  Donis  was  utterly  incon- 
sistent with  the  manners  and  customs  of  the  people  of  that 
state,  and  so  far  inapplicable  that  it  could  not  be  considered 
as  brought  into  that  state  with  the  common  law.  That  left 
the  attempted  estate  tail  in  Iowa  in  the  same  position  that  an 
attempted  estate  tail  was  in  England  prior  to  the  Statute  De 
Donis.  It  was  a  fee  simple  conditional,  and  the  fee  was  alien- 
able, so  as  to  become  indefeasible  as  soon  as  issue  had  been  born. 
Such  seems  to  be  the  law  in  lowa.^^  As  a  specimen  of  a  legal 
antiquity  it  is  certainly  entitled  to  first  place. 

§  20.  Estates  for  life :  An  estate  for  any  uncertain  period, 
and  not  an  estate  at  will,  is  a  life  estate.  An  estate  at  will 
is  an  estate  at  the  will  of  both  the  lessor  and  the  lessee.^^  The 
fact  that  the  estate  is  expressed  to  be  at  the  will  of  one  of  the 
parties  usually  raises  the  inference  that  it  is  at  the  will  of  both.^^ 
If,  however,  an  estate  be  at  the  will  of  the  lessee  alone,  or  of 
the  lessor  alone,  it  must  be  classed  as  a  life  estate  and  conse- 
quently as  a  freehold  estate.^^  Usually,  however,  life  estates 
are  expressly  limited  to  continue  during  the  life  of  the  person 
taking  the  estate,  or  during  his  and  other  lives,  or  during  the 
lives  of  other  persons  alone.-'' 

There  are  a  number  of  life  estates  which  arise  by  operation 
of  law.  The  tenant  in  fee  tail,  after  possibility  of  issue  ex- 
tinct, has  but  a  life  estate.    The  extinction  of  the  possibility  of 

C3  Kepler  v.  Larson,  131  la.  438.       3    Gray's   Cases   on    Prop.,   2nd   ed. 

54  Co.    Lit.   55a ;    3    Gray 's   Cases       311. 

on  Prop.,  2nd  ed.  315.  st  Lit.   §§56,  57;   1  Gray's  Cases 

55  Id.  on  Prop.,  2nd  ed.  341,  342. 
eeBeeson  v.  Burton,  12  C.  B.  647; 

19 


§  21]  INTRODUCTION    TO   THE   LAW   OF   RE.\L   PROPERTY        [Ch.  I 

issue  occurs  when  there  is  an  estate  tail  special  to  A,  and  the 
heirs  of  his  body  by  B,  and  B  dies  without  issue.^*  When  a 
man  married  a  woman  who  was  seized  of  land,  he  became  seized 
by  operation  of  law  of  an  estate  in  the  marital  right  for  the 
joint  lives  of  himself  and  his  wife  in  all  the  land  of  the  wife. 
Upon  the  birth  of  issue,  if  the  wife  had  been  seized  in  fee, 
he  became  entitled  at  her  death  to  an  estate  for  his  life  in  the 
whole.  This  last  was  called  the  tenancy  by  curtesy .^^  A  wife 
upon  the  death  of  her  husband  became  entitled  to  a  life  estate 
in  one-third  of  all  the  real  estate  of  which  her  husband  was 
seized  in  fee  in  his  lifetime.  It  was  not  necessary  that  any  issue 
be  born  of  the  marriage.  The  wife's  life  estate  was  called 
dower.*^*^  In  determining  whether  the  wife  had  dower,  or  the 
husband  had  curtesy,  the  actual  seisin  of  the  husband  or  wife 
was  necessary.  A  remainderman  or  reversioner  after  a  free- 
hold had  no  seisin,  and  hence  there  could  be  no  dower,  or  curtesy, 
in  such  a  remainder  or  reversion.*^! 

§21.  Estates  less  than  freehold:  These  were  terms  for 
years,  at  will,  and  at  sufferance.  A  term  for  years  is  one  which 
continues  until  a  day  certain.*^-  An  estate  at  will  is  one  which 
is  terminated  at  the  will  of  both  the  lessor  and  the  lessee.^^ 
There  is,  however,  a  well-recognized  rule  of  construction,  that 
an  estate  at  the  will  of  the  lessor  is  also  an  estate  at  the  will 
of  the  lessee.^^  Perhaps  an  estate  at  the  will  of  the  lessor  may 
be  construed  to  be  at  the  will  of  the  lessee  also.  An  estate, 
however,  at  the  express  will  of  one  party,  is  an  estate  at  wiU 
only  because,  by  a  process  of  construction,  it  is  at  the  will 
of  both  parties.  If  it  were  in  fact  an  estate  at  the  will  of  one 
party  alone  it  would  not  be  an  estate  at  will,  but  a  life  estate.^^ 
An  estate  at  sufferance  was  not  really  an  estate  at  all.  It  was 
the  name  given  to  the  possession  of  one  who  had  entered  law- 
fully but  continuel  to  hold  unlawfully.^^ 

From  the  present  day  point  of  view  it  is  plain  that  a  term 

58  Lit.   §§32,  3.3;   1  Gray's  Cases  62  Lit.    §58;    1    Gray's   Cases    on 

on  Prop.,  2nd  ed.  340.  Prop.,  2nd  ed.  342. 

59§§:>4,  3.'5;   Co.  Lit.  29b,  30a;   1  ^^  Ante,  §20. 

Gray's  Cases  on  Prop.,  2nd  ed.  341.  '^*  Id. 

«oLit.  §§36,  53;    1   Gray's  Cases  <i'- Id. 

on  Prop.,  2nd  ed.  .341.  bo  Lit.    §68;    1    Gray's    Cases   on 

61  Post,  §  30.  Prop.,  2nd  ed.  342. 

20 


CH.  IJ  FEUDAL   LAND   LAW  [§-1 

for  years — let  us  say,  one  liundred  and  ninety-eight  years — is 
as  much  an  interest  in  land  as  an  estate  in  A  for  his  life.     Both 
estates  give  a  right  of  possession  which  the  law  protects  to  the 
same  extent  and  by  the  same  remedies.     Yet  the  fact  remains 
that  the  term  for  years  has  all  the  attributes  of  an  interest  in 
personal  property,  and  is  called  personal  property,  or  a  chattel 
real,  while  the  life  estate  has  the  attributes  of  an  interest  in 
land  and  is  called  real  property.     The  explanation  of  this  dif- 
ference is  to  be  found  in  the  way  in  which  the  feudal  law 
treated  terms  for  years.     In  the  feudal  scheme  of  society  the 
term  for  years  seems  to  have  had  no  place.     No  feudal  dues 
or  services  were   exacted   from   tenants   for   years.      The   pos- 
session did  not  count  for  anything  from  the  feudal  point  of 
view.     The  relation  between  the  landlord  and  tenant  was  only 
that  produced  by  a  personal  contract.     The  feudal  tenant  was 
the  one  who  had  the  freehold  estate,  while  the  tenant  for  years 
was  in  possession  simply  by  reason  of  the  personal  contract  he 
had  with  the  freeholder.     The  freeholder  was  from  the  feudal 
point  of  view  in  possession.     lie  was  actually  seized  in  spite 
of  the  presence  of  the  tenant  upon  the  land.    From  the  feudal 
point  of  view  the  tenant  for  years  had  no  estate  at  all,  but 
only  a  personal  claim  against  the  freeholder  to  occupy  accord- 
ing to  the  agreement.     The  tenant  only  came  to  have  an  estate, 
or  right  of  property,  when  the  law  began  to  give  him  a  remedy 
whereby  he  might  specifically  enforce  the  contract  by  securing 
and  retaining  the  possession  which  was  promised.     "Originally 
he  [the  tenant]  had  no  remedy  in  case  of  his  ejectment,  unless 
he  held  under  a  covenant  with  his  landlord.     If  so,  he  might 
have  an  action  of  covenant  against  his  landlord  in  case  he  had 
been  ejected  by  the  landlord  himself  or  any  one  claiming  the 
land  by  superior  title  and  might  recover,  in  the  former  case, 
possession  of  his  holding  for  the  rest  of  his  term,  if  unexpired, 
but  otherwise  damages  only.     But  afterwards  special  actions 
were  given  to  a  tenant  for  years  against  any  person,  who  had 
wrongfully  ousted  him  or  acquired  possession  of  his  land  from 
a  wrongful  ejector.    And  though  at  first  it  was  doubted  whether 
these  actions  enabled  him  to  recover  anything  but  damages,  in 
the  reign  of  Edward  the  Fourth   it  was  established  that  he 
should  therein  recover  possession  of  his  holding  as  well."  *'"    At 
67  Williams     on     Real     Property,       18th    ed.,    17;    1    Gray's    Cases    on 

21 


§  22]  IXTKODUCTION    TO    THE   LAW   OF    REAL   PROPERTY        [CiL  I 

this  point  the  possession  of  the  tenant  for  years  became  legally 
secure.  In  time  it  became  as  secure  as  that  of  the  freeholder. 
The  tenant  for  years  then  had  a  right  of  property  in  addition 
to  his  personal  contract.  But  this  right  of  property  was  not 
a  feudal  property-right.  It  did  not  involve  the  rendering  of 
feudal  dues  or  services.  It  was,  and  it  has  remained  to  this 
day,  a  non-feudal  estate  essentially  different  from  the  feudal 
estates  of  freehold. 

§  22.  Joint  ownership :  The  feudal  law  recognized  four 
sorts  of  joint  oAvnership  as  follows : 

Coparceners:^^  Under  the  common-law  rule  of  descent 
where  females  were  entitled,  they  took  altogether  as  one  male 
heir.  There  was  no  such  thing  as  a  descent  to  heirs  in  the 
plural.  Where  several  females  held  by  descent  as  one  male 
heir  they  held  as  coparceners.  If  one  coparcener  died  leaving 
a  son,  her  undivided  interest  passed  by  descent  to  that  son 
and  he  became  a  coparcener  with  his  mother's  sisters.  The 
coparcenery  continued  so  long  as  the  descents  kept  up.  But 
if  one  coparcener  aliened  her  share,  the  alienee  and  the  remain- 
ing coparcener  were  tenants  in  common.**^ 

Joint  Tenants:  ''^  Several  might  hold  as  joint  tenants.  They 
also  were  regarded  as  holding  by  a  single  title.  When  one  died 
the  others  took  the  entire  property,  but  a  joint  tenant  might 
transfer  his  undivided  interest  to  a  third  party,  who  would  then 
hold  as  a  tenant  in  common  with  the  others.'^  ^  Upon  his  death 
the  share  would  descend  as  his  own  property.  The  third  party 
might  re-convey  to  the  joint  tenant  who  had  conveyed  to  him, 
and  the  joint  tenant  would  then  hold  as  tenant  in  common 
with  the  other  joint  tenants,  and  upon  his  death  his  interest, 
so  held  as  tenant  in  common,  would  pass  to  his  heir.  This 
process  was  known  as  severing  the  joint  tenancy. 

Estates  by  the  entirety:  When  there  was  a  conveyance  to 
a  man  and  his  wife,  both  held  by  the  entirety.    Upon  the  death 

Prop.,  2nd  ed.   1;   Pollock  on  Land  to  Lit.    §§277,  280-282,  287,  291; 

Laws,    1.37,    1.38;    Kales'    Cases    on  1   Gray's   Cases   on    Prop.,  2nd   ed. 

Future  Interests,  241.  344. 

68  Lit.  §§241,  242,  254,  265;  1  7i  Lit.  §§292,  294;  1  Gray's 
Gray's  Cases  on  Prop.,  2nd  ed.  343.  Cases  on  Prop.,  2nd  ed.  345. 

69  Lit.   §  309 ;    1   Gray 's  Cases  on 
Prop.,  2nd  ed.  345. 

22 


Ch.  I]  FEUDAL    LAND    LAW  [§24 

of  one,  the  other  took  the  whole  estate.  This  estate  by  entirety 
could  not  be  severed  by  the  alienation  of  one  spouse  alone. '^^ 

Tenants  in  common:  These  held  undivided  interests  by  sep- 
arate titles"^  and  upon  the  death  of  any  one  his  undivided 
interest  passed  by  descent  in  the  same  manner  as  property  held 
by  him  alone. 

The  common-law  rule  was  that  when  land  was  conveyed  to 
several  persons  a  joint  tenancy  was  meant  and  not  a  tenancy 
in  common.'^'*  In  this  may  be  seen  the  feudal  purpose  of  keep- 
ing the  land  always  in  a  single  owner  as  far  as  possible,  so 
that  the  responsibility  for  the  feudal  dues  might  be  the  more 
easily  ascertained  and  enforced.  Of  course,  today  the  rule 
that  a  joint  tenancy  is  meant  would  be  contrary  to  the  fact 
and  the  common-law  rule  has,  therefore,  been  generally  abol- 
ished by  statute,  and  in  its  place  has  been  established  the  rule 
that  a  tenancy  in  common  is  meant  unless  the  joint  tenancy 
be  expressly  provided  for.'^^ 

Topic  2. 
Future  Interests. 

§  23.  Possibilities  of  reverter  ajid  rights  of  entry  upon  con- 
dition broken:  These  have  already  been  dealt  with  in  con- 
sidering the  propriety  of  determinable  fees  and  fees  subject 
to  a  condition  subsequent. '^  It  follows  that  if  you  may  have 
a  fee,  subject  to  a  condition  subsequent,  the  right  of  entry  which 
accrues  to  the  creator  of  the  estate,  or  his  heirs,  upon  the  breach 
of  the  condition,  is  a  valid  future  interest.  So,  if  a  determinable 
fee  is  valid,  and  determines  upon  the  event  specified  happening, 
there  exists  a  valid  future  interest  by  way  of  a  possibility  of 
reverter   in   the   creator  of  the  determinable   fee   or  his  heirs. 

§  24.  Reversions  after  a  particular  estate  of  freehold : 
Whenever  one  seized  in  fee  created  out  of  his  fee  a  lesser  estate 
of  freehold— as  an  estate  tail,  or  a  life  estate— after  the  ex- 

72  Lit.     §291;     Challis     on     Real  -^  Lit.    §277;    1    Gray's   Cases  on 

Property,     2nd     ed.     344,     note;     1       Prop.,  2nd  ed.  344. 
Gray's  Cases  on  Prop.,  2nd  ed.  344,  ^s  post,  §§  210,  et  seq. 

note.  -<^An.te,  §§12,  13. 

T:i  Lit.    §  292 ;    1   Gray  's   Cases  on 
Prop.,  2nd  ed.  345. 

23 


§  25]     INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY   [Ch.  I 

piration  of  the  less  estate,  the  OAvner  in  fee  would  have  the 
fee  which  he  had  not  wholly  parted  with.  The  less  estate  is 
called  the  particular  estate,  and  what  is  left  in  the  owner  in 
fee  is  called,  during  the  continuance  of  the  particular  estate,  the 
reversion^'  Clearly  the  reversion  arises  by  operation  of  law. 
Under  the  feudal  law,  and  ever  since,  it  has  been  a  valid  future 
interest.  Its  existence  and  validity  were,  in  reality,  corollaries  to 
the  permitting  of  estates  less  than  a  fee  simple.  The  reversion 
was  clearly  unobjectionable  from  the  point  of  view  of  the  feudal 
requirement  that  someone  must  always  be  in  possession  claim- 
ing a  freehold,  so  that  he  might  be  responsible  for  the  feudal 
dues.  If  the  lesser  estate  were  a  freehold  there  was  such  a 
tenant  in  possession.  There  was  clearly  no  chance  for  a  gap 
between  the  time  when  the  particular  estate  terminated  and 
the  time  when  the  reversioner  could  enter.  The  reversioner, 
or  his  heir  by  descent  from  liim,  stood  ready  during  the  con- 
tinuance of  the  reversion  to  take  possession  whenever  and  how- 
ever the  particular  estate  might  determine. "« 

§  25.  Remainders  after  a  particular  estate  of  freehold : 
Suppose  under  the  feudal  law  an  attempt  was  made  to  create 
by  the  act  of  the  parties  a  future  estate  in  a  third  party,  having 
precisely  the  same  attributes  as  the  reversion  already  described. 
Thus,  land  is  conveyed  to  A  for  life,  and  by  the  same  instru- 
ment a  future  interest  is  limited  to  B  and  his  heirs.  B  and  his 
heirs  here  stand  ready  at  all  times  during  the  continuance  of 
A's  estate  to  take  possession  whenever  and  however  A's  life 
estate  terminates.  If  A  forfeits  his  life  estate  before  his  death. 
B  or  his  heirs  may  at  once  step  in.  There  will  be  no  gap  in  the 
feudal  possession.  There  will  always  be  a  tenant  seized  of  the 
freehold  to  answer  for  the  feudal  dues.  Such  a  future  interest 
was  clearly  unobjectionable.  It  was  held  valid  in  all  prob- 
ability long  before  the  fifteenth  century.  It  was  called  a  re- 
mainder,'^^ and  more  recently,  a  vested  remainder.     From  the 

77  2  Pollock  &  Maitland  's  His-  79  Williams  on  Eeal  Property, 
tory,  21,  22;  Williams  on  Heal  21st  ed.  333,  342;  Kales'  Cases  on 
Property,  21st  ed.  332,  333;  Kales'  Future  Interests,  57;  1  Gray's 
Cases  on  Future  Interests,  56.                  Cases  on  Prop.,  2nd  ed.  316. 

78  Gray,  Rule  Against  Perpetui- 
ties, §113;  Kales'  Cases  on  Future 
Interests,  57. 

24 


Ch.  I]  FEUDAL    LAND    LAW  [§-<J 

feudal  point  of  view  it  was  vested  because  it  stood  ready  at  all 
times  to  take  effect  in  possession,  whenever  and  however  the 
particular  estate  determined. 

This  was  the  vital  characteristic  because  it  precluded  the 
possibility  of  any  gap  between  the  time  when  the  particular 
estate  ended  and  the  time  when  the  person  to  whom  the  future 
interest  was  limited,  would  have  a  rigiit  to  enter.  Such  a  gap 
would  leave  the  seisin  in  abeyance  and  interrupt  the  coiitiiiuity 
of  the  feudal  services  and  dues.  It  W(nild,  therefore,  have 
been  highly  objectionable.  In  fact  the  mere  possibility  that 
such  a  gap  might  occur  was  originally  so  objectionable  tliat 
its  existence  would  have  caused  the  future  interest  to  be  wholly 
void.^'^  "When,  tlierefore,  the  future  interest  was  so  limited  by 
the  same  instrument  which  created  the  particular  estate,  that 
it  stood  ready,  during  its  continuance,  to  take  effect  in  pos- 
session whenever  and  however  the  preceding  estate  determines, 
the  possibility  of  a  gap  was  eliminated  and  the  future  interest 
was  unobjectionable  and  valid. 

§  26.  Springing-  and  shifting-  future  interests  and  limita- 
tions to  classes:  When  the  future  interest  is  limited  to  take 
eft'ect  upon  an  event  which  will  certainly  leave  a  gap  unfilled 
by  any  estate  expressly  limited,  it  is  said  to  be  a  springing  future 
interest.  Thus,  a  conveyance  to  A  for  life  and  one  year  after 
A's  death  to  B  and  his  heirs,  insures  the  gap  of  one  year  be- 
tween the  termination  of  A's  life  estate  and  the  taking  effect 
of  B's  future  interest.  So,  if  an  estate  be  limited  to  A,  be- 
ginning one  year  hence,  there  is  a  gap  of  one  year  before  A's 
estate  begins.  Such  future  interests  were  highly  objectionable 
from  the  feudal  point  of  view.  If  there  could  be  a  gap  for 
one  year,  there  coiUd  be  a  gap  for  longer.  During  the  gap 
no  person  would  be  seized  of  the  freehold  and  none  would 
be  liable  for  the  feudal  dues  and  services.  It  was  of  no  avail 
to  argue  that  there  would  be  a  reversion  by  operation  of  law 
to  till  the  gap  for  the  year,  or  that  where  the  estate  was  to 
begin  in  A  one  year  from  the  date  of  the  conveyance,  the  trans- 
feror would  retain  the  fee  until  the  year  was  up.  From  the 
feudal  jioiut  of  view  it  was  not  to  be  exi)ected  that  any  one 
would   midertake  tlie   burden   of  performing  the   feudal   dues 


80  Post,    §  28. 


25 


§26]  INTRODUCTION    TO    THE   LAW   OF    REAL   PROPERTY        [Ch.  I 

attaching  to  a  fee  simple  for  the  brief  space  of  a  year.  From 
the  feudal  point  of  view  the  fact  that  there  would  be  no  in- 
ducement to  any  one  to  remain  in  possession  of  the  fee  for  one 
year  was  enough  to  justify  the  assertion  that  the  fee  would 
be  in  abeyance  or  in  nuhihus.  The  springing  future  interest 
was  wholly  void  under  the  feudal  land  law.^^ 

When  the  future  interest  is  limited  upon  an  event  which 
would  terminate  prematurely  the  preceding  freehold,  it  is  called 
a  shifting  future  interest.  Thus,  if  the  conveyance  be  to  A 
in  fee  and  if  A  die  without  issue  surviving,  to  B  in  fee,  B  has 
a  shifting  future  interest.  B's  interest  is  said  to  lap  over  upon 
A's.  A  shifting  future  interest  has  been  defined  as  one  which 
laps  over  on  the  preceding  estate.  It  is  thus  distinguished  from 
a  springing  future  interest  which  takes  effect  after  a  gap.  The 
shifting  future  interest  was  also  objectionable  from  the  feudal 
point  of  view.  The  first  taker  who  had  the  fee  could  not  be 
expected  to  perform  the  feudal  dues  attaching  to  a  fee  when 
he  might  be  obliged  to  give  it  up  at  his  death.  If  the  first 
taker  did  retain  the  seisin  and  perform  the  feudal  dues,  upon 
his  death  his  heir  might  be  expected  to  take  advantage  of  the 
situation  to  continue  in  the  actual  seisin,  and  if  B  then  attempted 
to  enforce  a  right  of  possession,  disorder  and  strife  would  be 
engendered.  The  shifting  future  interest  was  held  wholly  void 
under  the  feudal  land  law.^- 

Suppose  a  freehold  were  attempted  to  be  limited  to  the 
children  of  A,  who  had  no  children  at  the  time.  Clearly  the 
attempt  would  be  to  create  a  springing  future  interest  and  the 
limitation  to  the  class  would  be  void.  If,  however,  one  child 
of  A  were  in  esse  the  conveyance  would  take  effect  as  to  that 
child.  As  to  the  other  children,  if  they  were  expressly  included 
in  the  conveyance,  the  attempt  would  be  to  create  a  shifting 
future  interest  divesting  ptw  tanto  the  fee  of  the  child  in  esse. 
Hence  the  conveyance  as  far  as  the  afterborn  children  were 
concerned  would  fail.  The  net  result  was  that  in  a  conveyance 
to  a  class  or  to  A  and  a  class,  such  as  his  children,  the  con- 
veyance was  valid  to  A  and  any  members  of  the  class  in  esse 
when  the  conveyance  took  effect,  and  invalid  as  to  all  others.^^ 

81  Leake,    Digest    of    Land    Law,       Cases  on  Future  Interests,  58,  59. 
2nd  ed.  230,  231;  id.,  33;  1  Gray's  »'~  Id. 

Cases  on  Prop.,  2nd  ed.  347;  Kales'  83  Co.  Lit.  9a;  Sheppard's  Touch- 

26 


Ch.  I]  FEUDAL    LAND    LAW  [§  27 

This  must  have  been  the  rule  under  the  feudal  land  law,  no 
matter  how  clearly  it  was  expressed  that  the  afterborn  mem- 
bers of  the  class  were  to  share. 

§  27.  Contingent  remainders — defined :  1  f ,  after  the  crea- 
tion of  a  freehold,  there  is  limited  in  the  same  instrument  a 
future  interest  which  stands  ready  during  its  continuance  to 
take  effect  in  possession  whenever  and  however  the  preceding 
estate  determines,  so  that  there  is  no  possibility  of  a  gap  in  the 
seizin  between  the  particular  estate  and  the  future  interest,  the 
future  interest  is  valid  by  the  feudal  law.  But  if  the  future 
interest  is  limited  so  that  it  is  sure  to  take  effect  after  a  gap 
between  the  termination  of  the  preceding  estate  and  the  taking 
effect  of  the  future  interest,  it  is  void.  Now,  suppose  the  future 
interest  be  so  limited  that  it  may  take  effect  by  coming  into 
possession  immediately  upon  the  termination  of  the  preceding 
estate  of  freehold,  whenever  and  however  that  may  occur,  or 
as  limited,  it  maj'  take  effect  in  possession  some  time  after  the 
termination  of  the  preceding  estate  of  freehold.  Suppose, 
for  instance,  the  limitations  are  to  A  for  life,  remainder  to  B 
in  fee  if  he  survive  A.  Here,  if  A's  life  estate  continues  till  A's 
death,  B  will  take  in  possession,  if  he  takes  at  all,  at  once  on 
the  termination  of  A's  life  estate.  There  will  be  no  gap.  If, 
however,  A's  life  estate  terminates  prematurely  before  A's  death, 
the  fatal  gap  will  occur,  because  it  will  not  be  ascertained  at 
that  time  whether  B  will  survive  A's  death.  Take  another 
case:  Suppose  the  limitations  are  to  A  for  life,  then  to  the 
heir  of  B,  B  cannot  have  an  heir  till  his  death,  so  that  it  cannot 
be  determined  who  is  to  take  after  the  life  estate  until  B's  death. 
If  B  outlive  A  there  will  again  be  the  fatal  gap,  but  of  B  die 
before  A's  life  estate  terminates,  no  gap  can  possibly  occur. 
It  cannot  be  foretold  in  advance  whether  the  objectionable  gap 
will  occur  or  not.  Suppose  estates  are  limited  to  A  for  life, 
then  to  such  children  of  A  as  reach  twenty-one.  If  at  A's 
death  no  children  have  reached  twenty-one  then  the  objection- 
able gap  will  have  occurred.  If  they  have  all  reached  twenty- 
one  it  will  not.  It  cannot  be  foretold  in  advance  whether  the 
gap  will  occur  or  not.  The  essential  characteristic  of  all  these 
cases  is  that,  taking  the  estates  according  to  the  expressed  in- 


stone,  436;  Kales'  Cases  on  Future 
Interests.  229. 


27 


§  28]     INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY   [Ch.  1 

tention,  the  fatal  gap  may  or  may  not  occur.  To  put  it  another 
way,  the  event  upon  which  the  future  interest  is  to  take  effect 
in  possession  is  one  which  may  happen  before  or  after,  or  at 
the  time  of  or  after,  the  termination  of  the  preceding  particular 
estate  of  freehold.  If  the  event  happens  before,  or  at  the  time 
of  the  termination  of  the  preceding  particular  estate,  no  gap 
occurs.  If  it  happens  afterwards,  the  gap  does  occur.^^  Fu- 
ture interests  which  answer  this  description,  are  common-law 
contingent  remainders.  Their  essential  characteristic  is  the  pos- 
sibility of  a  gap. 

§  28.  Is  the  contingent  remainder  valid  or  invalid  under 
the  feudal  law?  It  may  be  confidently  asserted  that  before 
1430  the  contingent  remainder  was  wholly  void.^^  The  possibil- 
ity that  there  would  be  a  gap  in  the  seizin  between  the  termina- 
tion of  the  particular  estate  and  the  taking  effect  in  possession 
of  the  future  interest  caused  the  future  interest  to  be  discarded 
as  void.  It  must,  how^ever,  ultimately  have  been  perceived  that 
these  contingent  future  interests  might  take  effect  without  any 
gap ;  that  they  would  do  so  if  the  event  upon  Avhieh  they  were 
limited  happened  before  or  at  the  termination  of  the  particu- 
lar estate,  and  that  if  they  actually  did  take  effect  in  this  man- 
ner they  were  not  objectionable  under  the  feudal  system  of  land 
laws.  It  is  not  surprising,  therefore,  to  find  that  about  1430, 
such  a  future  interest  was  allowed  to  take  effect  provided  it  did 
so  in  this  unobjectionable  manner.^^  When  this  happened  the 
contingent  remainder  of  the  common  law  commenced  its  existence. 
The  rule  became  this:  If  the  event  upon  which  the  future  in- 
terest was  limited  to  take  effect  in  possession  happened  before, 
or  at  the  time  of  the  termination  of  the  preceding  estate,  so 
that  there  would  be  no  gap,  the  future  interest  took  effect  as  a 
remainder  and  was  valid.  If,  however,  the  event  upon  which  the 
future  interest  was  limited  to  take  effect  in  possession  happened 
after  the  termination  of  the  preceding  estate,  so  that  the  gap 
occurred,  the  future  interest  was  void.  This  w^ay  of  stating 
the  matter  was  ultimately   translated  into  the  rule   that   the 

8*  Fearne,  Contingent  Remainders,  8=  Williams     on     Real     Property, 

3,  4;  id.  Butler's  note    (g)  ;   Leake  21st  ed.  356,  358;   Kales'  Cases  on 

on  Property  in  Land,  2nd  ed.  233;  Future  Interests,  80,  81. 

Kales'    Cases    on    Future   Interests,  »*i  Id. 

82. 

28 


Ch.  1]  FEUDAL   LAND    LAW  [§29 

contingent  remainder  was  destroyed  unless  it  vested  before  the 
termination  of  the  preceding  interest.  The  word  "vest"  here 
meant  no  more  than  that  the  future  interest  must  come  into  a 
position  where  it  stood  ready  to  take  effect  whenever  and  how- 
ever the  preceding  estate  determined,  so  that  there  could  be  no 
gap.  It  is  entirely  immaterial  whether  it  be  said  that  the  fu- 
ture interest  must  vest  at,  or  before,  the  termination  of  the  pre- 
ceding estate,  or  else  be  destroyed;  or  whether  it  is  stated  that 
the  future  interest  is  void  unless  the  event  upon  which  it  is  to 
take  effect  in  possession  happens  at  or  before,  and  not  after, 
the  termination  of  the  preceding  estate.  Both  ways  of  putting 
the  rule  amount  to  the  same  thing.  Both  formula;  state  what 
is  known  as  the  rule  of  destructibility  of  contingent  remainders. 

The  full  force  of  this  doctrine  of  destructibility  of  contin- 
gent remainders  cannot  be  appreciated  unless  it  be  perceived 
that  the  particular  estate  may  be  prematurely  terminated  by 
the  act  of  the  one  seized  of  it.  The  life  estate  may  be  forfeited 
by  a  tortious  conveyance,  as  by  levying  a  fine,  or  suffering  a  re- 
covery, or  making  a  feoffment  in  fee.**'  The  life  estate  may  also 
terminate  prematurely  by  merger.  Thus  if  A  create  an  estate 
in  B  for  life  with  remainder  to  B  's  unborn  son,  there  will  be  a 
reversion  in  A  by  operation  of  law  pending  the  birth  of  the 
son.  If,  then,  B  convey  his  life  estate  to  A,  B's  life  estate  will 
terminate  by  merger  in  the  reversion  in  fee  of  A,  and  by  this 
means  the  life  estate  will  come  to  an  end  before  B's  death. 
Hence  where  A  has  a  life  estate  with  a  remainder  to  B  in  fee  if 
he  survive  A,  there  is  the  chance  of  a  gap  because  A,  by  for- 
feiture or  merger,  may  prematurely  terminate  his  life  estate 
before  his  death.  Common  law  conveyancing  is  full  of  examples 
where,  by  prematurely  terminating  the  life  estate  by  forfeiture 
or  merger,  the  contingent  remainder  is  destroyed.*^^ 

§  29.  Distinction  between  vested  and  contingent  remain- 
ders: The  common-law  distinction  between  a  vested  and  a 
contingent  remainder,  and  the  reason  for  the  distinction,  ought 
now  to  be  plain.  The  feudal  law  singled  out  remainders  which 
throughout  their  continuance  stood  ready  at  all  times  to  take 
effect  in  possession  whenever  and  however  the  preceding  estate 
came  ot  an  end,  as  unobjectionable  because  there  was  no  possi- 

8'  POA•^     §46.  '       SS  PoA'f,    g§  ;ill,   olJ. 

29 


§30]  INTRODUCTION    TO    THE   LAW    OF    REAL   PROPERTY        [Ch.  I 

bility  of  a  gap.  Remainders  having  these  essential  character- 
isties  were  called  "vested."  A  vested  remainder  is,  there- 
fore, very  properly  defined  by  Professor  Gray  as  follows:  ^^  "A 
remainder  is  vested  in  A,  when,  throughout  its  continuance  A, 
or  A  and  his  heirs,  have  the  right  to  the  immediate  possession, 
whenever  and  however  the  preceding  estates  may  determine." 
On  the  other  hand  a  remainder  limited  to  take  effect  in  possession 
upon  an  event  which  may  not  happen  till  after  the  termination 
of  the  particular  estate,  presents  the  possibility  of  a  gap.  Re- 
mainders having  this  essential  characteristic  are  properly  called 
contingent  remainders.  A  contingent  remainder  is  thus  per- 
fectly defined  by  Butler:  ^o  ''All  contingent  remainders  appear 
to  be  so  far  reducible  under  one  head  that  they  depend  for 
their  vesting  on  the  happening  of  an  event,  which,  by  possibility, 
may  not  happen  during  the  continuance  of  the  preceding  estate, 
or  at  the  instant  of  its  determination. ' ' 

§  30.  Seisin  of  future  interests  after  estates  of  freehold: 
Not  even  the  vested  remainderman  had  any  actual  seisin.  After 
mentioning  that  the  reversioner  had  a  sort  of  seisin  because  of 
the  services  rendered  by  him,  the  learned  authors  of  Pollock  and 
IMaitland's  History  say:  ^i  "On  the  other  hand,  we  cannot  find 
that  any  sort  or  kind  of  seisin  was  as  yet  attributed  to  the  re- 
mainderman. He  was  not  seized  of  the  land  in  desmene,  and  he 
was  hot,  like  the  reversioner,  seized  of  it  in  service,  for  no  serv- 
ice was  due  him."  The  absence  of  seisin  in  the  remainderman 
seems  always  to  have  continued,  for  Hargrave  says  (the  italics 
are  his):''-  "But,  in  opposition  to  what  may  be  termed  the 
expectant  nature  of  the  seisin  of  those  in  remainder  or  reversion 
the  tenant  in  possession  is  said  to  have  the  actual  seisin  of  the 
lands."  It  followed,  from  the  fact  that  the  remainderman  had 
no  seisin  that  he  did  not  render  feudal  services.^^  He  could  not 
bring  a  writ  of  riglit.^^  In  order  to  transfer  a  remainder  the 
co-operation  by  attornment  of  the  tenant  was  necessary,  so  that 
the  actual  seisin  of  the  freehold  in  possession  might  be  held  for 

89  Gray's  Eiile   Against  Perpetui-  ai  2  Pollock  &  Maitland's  History, 

ties,  2nd  ed.  §  101.  39. 

90Fearne,  Contingent  Remainders,  92  Co.  Lit.,  Hargrave 's  note,  217. 

9  Butler's  note  (g) ;  Challis  on  Real  93  2  Pollock  &  Maitland's  History, 

Property,  3rd  ed.  125,  126;   Leake,  39. 

Digest  of  Land  Law,  2nd  ed.  233.  »*  Lit.  §  481. 

30 


Ch.  I]  FEUDAL    LAND    LAW  [§31 

the  grantee  of  tlie  remaiuderman.'*''  A  remainderman,  other 
than  one  wlio  was  an  original  purchaser,  did  not  constitute  a 
new  stock  of  descent.""  The  consequences  arising  from  the  fact 
that  tlie  remainderman  had  no  seisin  have  come  down  to  us  in 
the  rule  that  there  can  be  no  dower  or  courtesy  in  a  remaindcr.^^ 
§  31.  Future  interests  after  an  estate  less  than  a  freehold — 
By  operation  of  law:  Suppose  A,  being  the  owner  in  fee,  en- 
ters into  an  agreement  with  B  by  whicli  B  is  allowed  possession 
for  three  years.  When  this  was  merely  a  personal  contract,^* 
and  B  had  no  right  of  property  which  he  could  enforce,  it  is  plain 
that  from  the  feudal  point  of  view  A  was  still  in  actual  posses- 
sion of  the  freehold.  B's  possession  was  not  recognized  by  the 
feudal  law.  When,  however,  B  came  to  have  a  right  of  prop- 
erty as  against  A,  and  against  A's  transferee,  it  is  clear  that  A 
actually  had  only  a  future  interest.  lie  was  not  in  possession. 
He  had  no  right  to  possession  till  the  three  years  were  up. 
Nevertheless  B,  having  only  a  term  for  years,  was  not  seized. 
A  was  still  regarded  as  the  feudal  tenant  having  the  actual 
seisin.  This  seisin  was  no  doubt  somewhat  fictitious  but,  his- 
torically, it  was  the  continuance  as  a  fictitious  seisin  of  what 
had  been  (before  the  tenant's  possession  was  protected),  an 
actual  seisin.  In  more  recent  times  it  has  been  openly  called 
a  reversion,  as  if  there  were  no  difference  between  the  rever- 
sion after  a  term  and  the  reversion  after  a  life  estate.  In  fact, 
however,  there  is  this  great  difference:  the  reversion  after  a 
term  is  in  one  who  has  an  actual  seisin  of  a  freehold  in  pos- 
session, while  the  reversioner  after  a  life  estate  has  no  actual 
seisin  at  all,  and  is  not  put  upon  the  footing  of  one  who  has."'' 
This  difference  becomes  of  practical  importance  when  it  is  to 
be  determined  whether  a  widow  has  dower.     She  has  no  dower 

95  <<  Mystery  of  Seisin, "  by  F.  W.  respect    the    remainder    was    on    the 

Maitland,  2   Law  Quart.  Rev.,  481,  footing  of  a  mere  right  of  entry  by 

490-493.  one    disseised.      "The    Mystery    of 

90  4  Kent  Com.   387.     In  this  re-  Seisin,"    2    Law    Quart.    Rev.    481, 

spec*  afso  the  remainder  was  on  the  485,  et  seq.;  Kellett  i'.  Shepard,  139 

footing   of    a   mere   right   of    entry  111.  433,  449. 

by    one    disseised.      The    "Mystery  ^'^  Ante,  §21. 

of  Seisin,"  by  F.  W.   Maitland,  2  99  Challis    on   Real   Property,   3rd 

Law  Quart.  Rev.  481,  485.  ed.  99;  Kales'  Cases  on  Future  In- 

97  Co,  Lit.  29a,  32a;    Scribner  on  terests,    242;     1    Gray's    Cases    on 

Dower,    2nd    ed.    233,   321.      In   this  Prop.,  2nd  ed.  350. 

31 


§  '32]  INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY   [Ch.  I 

except  iu  lands  of  which  her  husband  was  actually  seized 
during  coverture.  Hence,  she  has  dower  in  his  so-called  rever- 
sion after  a  term  for  years,  but  not  in  a  reversion  after  a  life 
estate.^ 

§32.  By  act  of  the  parties  —  Non-contingent  interests: 
Suppose  that  a  term  for  ten  years  is  limited  to  A  with  a  so- 
called  remainder  after  that  to  B  in  fee.  Here  the  estate  of 
B  is  exactly  like  the  so-called  reversion  after  the  term,  except 
that  it  is  an  interest  attempted  to  be  created  by  express  words. 
It  might  be  assumed  that  before  the  tenant  had  any  property 
right,  his  presence  on  the  land  did  not  at  all  prevent  the  trans- 
fer of  the  fee  to  B,  so  that  B  would  actually  be  seized  of  a 
freehold.  When  the  tenant  came  to  have  a  right  of  property, 
B's  interest  was  really  a  future  interest  exactly  as  where  one 
had  a  reversion  after  a  life  estate.  Nevertheless,  B's  interest 
continued  to  be  valid,  and  what  had  perhaps  before  been  a  real 
seizin,  was  continued  in  5  as  a  fictitious  seizin.  The  reality  of 
B's  seizin  was  approximated  as  nearly  as  possible  by  requiring 
liverij  of  seizin  to  be  made  to  A,  the  tenant  for  years,  for  B.^ 
The  theory  still  was  that  B  received  the  actual  seis-in,  and  the 
tenant  became  his  tenant.  Hence  B's  widow  was  entitled  to 
dower  in  B's  interest  after  the  term. 

§33.  Contingent  future  interests  after  a  term:  Suppose 
that  after  a  term  for  ten  years  limited  to  A,  an  interest  is  limited 
to  B  provided  he  survive  the  term.  Here  the  condition  upon 
which  B  is  to  take  makes  it  impossible  that  B  should  receive 
anything  approaching  actual  seisin  at  once.  There  can  be  no 
tenant  to  the  freehold  until  it  is  determined  that  B  has  out- 
lived the  ten  years.  Since  tlie  term  for  years  is  a  non-feudal 
estate,  the  fatal  gap  in  the  seisin  has  occurred,  and  the  interest 
of  B  must  be  void.    Such  was  the  feudal  law.- 

Topic  3. 

Rule  in  Shelley's  Case. 

§  34.  Statement  of  the  Rule :  This  Rule  deals  with  the  legal 
effect  of  limitations  to  A  for  life  (or  in  tail)  with  a  remainder 

1  Scribner  on  Dower,  2ncl  ed.  3  Leake  on  Property  in  Land,  2nd 
§  233.  ed.  35 ;  Kales '  Cases  on  Future  In- 

2  Lit.  §  60 ;  1  Gray 's  Cases  on  terests,  242 ;  1  Gray 's  Cases  on 
Prop.,  2nd  ed.  352.  Prop.,  2nd  ed.  351. 

32 


Cir.  I]  FEUDAL    LAND   LAW  [§  35 

to  tlie  heirs  of  A  or  to  the  heirs  of  tiie  body  of  A.  Where  the 
remainder  is  thus  limited  to  the  "heirs"  of  A,  the  Rule  requires 
that  A  take  the  fee  simple.  If  the  remainder  be  to  the  "heirs 
of  the  body"  of  A,  the  Rule  places  the  fee  tail  in  A.  The  Rule 
may  be  thus  slated:  Whoi-cvcr  an  eslatc  of  freehold  is  limited 
to  A,  followed  by  a  remainder  to  A's  lieirs,  or  the  heirs  of  the 
body  of  A,  A  will  take  a  fee  simple,  or  a  fee  tail,  as  the  ease 
may  be. 

This  rule  dates  baek  at  least  as  far  as  132-i,^  although  Shelley's 
Case  appears  not  to  have  been  decided  until  al)out  1581. •'• 

§  35.  The  reasoning-  upon  which  the  Rule  was  established : 
This  is  admittedly  conjectural  only.  It  has  been  insisted''  that 
because,  under  the  feudal  law,  there  could  be  only  one  heir, 
"heirs"  in  tlie  plural  was  not  used  as  a  word  of  purchase  but 
as  a  word  of  limitation,  meaning  the  indefinite  line  of  inherit- 
able succession.  An  intent  that  the  whole  line  of  i)ilierilable 
succession  should  take  could  oidy  be  given  effect  by  holdnig 
that  A  took  the  fee  simple  or  fee  tail  as  the  case  might  be  so 
that  the  line  of  inheritable  succession  would  take  by  descent 
from  AJ  On  the  other  hand  it  might  well  be  urged  »  that  the 
remainder  to  the  "heirs"  of  A,  means  that  a  remainder  is  at- 
tempted to  be  limited  to  the  person  or  persons  who  would  be 
the  life  tenant's  heir  or  heirs  at  the  time  of  his  death— heirs 
being  used  in  the  context  as  a  word  of  purchase;  that  such  a 
remainder  would  have  been  a  contingent  remainder  and  there- 
fore wholly  void  before  1430 ;  '•*  that  the  result  of  the  invalidity 
of  the  remainder  would  be  to  give  A  a  life  estate  with  a  reversion 
in  fee  to  the  settlor,  which  would  disappoint  the  expectations  of 
A'a  family  and  destroy  the  settlement;  that  to  avoid  this  the 
law^  simply  and  directly  decreed  that  A  should  have  the  fee  or 
the  fee  tail,  as  the  case  might  be,  and  that  A's  heirs  or  the  heirs 
of  A's  body  would  take  by  descent  from  .1  instead  of  by  pur- 

•»  Abel's   Case,   Y.   B.    18   Ed.   II,  « Goodeve,    Law    of    Real    Prop., 

577   (1324),  translated  in  7  M.  &  G.  4th   ed.   by   Elphinstone,   Clark   and 

941  note  (a);  Provost  of  Beverley's  Dickson,  239,  240;  Kales'  Cases  on 

Case,  Y.  B.  40  Edw.  Ill,  fol.  9  a.  b.  Future  Interests,  251. 

[1366];  Williams  on  Eeal  Property,  'Post,  §423. 

21st  ed.  350,  351 ;    5  Gray 's  Cases  »  Compare,  Challis  on  Real  Proper- 

on  Prop.,  2nd  ed.  83;   Kales'  Cases  ty,   3rd   ed.    152,   166,    167;    Kales' 

on  Future  Interests,  250.  Cases  on  Future  Interests,  252,  253. 

5  1  Co.  Lit.  93b.  ^Ante,  §  28. 
Kales  Fut.  Int. — 3                               33 


§  36]  INTRODUCTION    TO    THE   LAW    OF    REAL   PROPERTY        [Ch.  I 

chase  from  the  settlor.  In  this  view  the  Rule  applied  where 
the  word  "heirs"  was  used  as  a  word  of  purchase  and  just 
because  when  so  used  the  remainder  would  fail.  The  often 
repeated  statement  that  "heirs"  is  used  as  a  word  of  limita- 
tion is  not  so  much  the  basis  for  the  application  of  the  Rule  as 
a  description  of  the  situation  after  the  Rule  has  been  applied. ^"^* 
Both  lines  of  reasoning  come  to  the  same  result  but,  as  will 
hereafter  appear,  it  may  make  a  difference  in  determining  the 
application  of  the  Rule  which  view  is  emphasized. ^^ 

§  36.  Persistence  of  the  Rule :  The  Rule  in  Shelley 's  Case 
has  exliibited  great  vitality.  It  has  been  applied  to  equitable  ^- 
as  well  as  legal  estates  in  land.  Some  courts  have  (without 
justitication,  it  is  believed)  applied  it  by  analogy  to  interests 
in  personal  property.  ^^  The  Rule  is  still  in  force  in  England 
and  in  many  states  of  this  country.  Sometimes  ref)eated  efforts 
in  a  state  legislature  to  dislodge  it  have  met  with  failure.  Thus, 
a  product  of  feudalism  without  a  vestige  of  feudal  reasoning 
left  to  support  it,  has  come  down  to  us  and  though  the  rule 
today  clearly  upsets  testators'  and  settlors'  intentions  by  giv- 
ing to  the  life  tenant  more  than  was  expressly  allowed  him,  yet 
legislatures  are  to  be  found  which  will  not,  or  have  not,  abolished 
it. 

§  37.  Operation  of  the  Rule:  The  older  view  was  that  the 
Rule  in  Shellej^'s  Case  was  sufficient  by  its  own  force  to  place 
the  whole  fee  in  A,  the  life  tenant,  and  eliminate  the  life  estate. 
It  was  assumed  that  the  limitation  to  the  heirs  by  virtue  of 
some  force  of  attraction  united  and  coalesced  with  the  limita- 
tion of  the  freehold  to  the  ancestor  and  thus  operated  to  vest  in 
him  a  fee  simple,  or  a  fee  tail,  as  the  case  might  be.  The  later 
view  is,  that  the  limitation  to  the  heirs  is  executed  in  the  an- 
cestor, to  whom  a  gift  is  implied,  so  as  to  vest  in  him  a  new  and 
larger  estate  in  which  the  particular  estate  of  freehold  merges 
when  there  is  no  intervening  estate. ^^  In  this  view  the  Rule 
operates  not  at  all  on  the  life  estate  in  A,  but  only  on  the  re- 
mainder. It  turns  the  remainder  to  heirs  into  a  remainder  to  A 
himself,  so  that  in  the  usual  case,  when  the  Rule  has  operated, 

10  Post,  §424.  1*  Per  Lord  MacNaughton  in  Van 

11  Posi,   §§421-428.  Grutten    v.    Foxwell,    [1897]    A.    C. 

12  Posf,  §§  429  et  seg.  658,    668;    Kales'   Cases   on   Future 
IS  Post,  §438.  Interests,  285;  post,  §440. 

34 


CH.  I]  FEUDAL    LAND   LAW  [§  39 

A  has  a  life  estate  with  a  remainder  in  fee  to  himself.  Then, 
A's  life  estate  merges  in  A's  fee  and  the  only  estate  in  A  is  a  fee. 
It  therefore,  makes  no  difference  how  emphatically  it  be  stated 
that  A  is  to  have  only  a  life  estate,  the  rule  will  apply.  That 
is  settled."^  If,  between  the  life  estate  to  A,  and  the  remainder 
to  A's  heirs,  a  life  estate  to  B  be  inserted,  it  is  settled  that, 
upon  the  application  of  the  rule,  A  has  a  life  estate,  B  has  a  life 
estate,  and  A  has  a  remainder  in  fee.  No  merger  can  occur  be- 
cause of  the  intermediate  estate. 

TITLE  III. 
SEISIN  IN  ITS  RELATION  TO  CONVEYANCE. 

§38.    Distinction  between  descent  and  purchase:  ^^     The 

feudal,  or  common-law  distinction  between  title  ])y  descent  and 
title  by  purchase  was  this:  Title  came  by  descent  Avhen  it 
passed  by  operation  of  law  as  by  inheritance,  bj'  escheat  or 
where  the  tenant  became  seized  of  an  estate  of  curtesy  or  dower. 
Title  came  by  purchase  where  it  passed  by  act  of  the  parties. 
A  title  was  acquired  by  purchase  if  it  came  by  act  of  the  trans- 
feror, although  no  consideration  whatever  was  paid.  There- 
fore, where  title  came  by  devise,  it  came  by  purchase.  In  speak- 
ing hereafter  of  title  by  descent,  or  of  title  by  purchase,  it 
should  be  observed  that  these  terms  are  used  in  this  feudal  or 
common-law  sense. 

§39.  Descent — From  whom  traced:  Today  the  rule  is  be- 
lieved to  be  universal  in  this  country  that  descent  is  traced 
from  the  person  last  entitled.''  This  is  the  logical  result  of 
the  fact  that  ownership  is  the  vital  thing  at  the  present  day. 
The  feudal  law,  however,  was  intent  rather  upon  tlie  seisin  or 
feudal  possession,  and,  therefore,  required  that  descent  be  traced 
from  the  person  last  seized.  Suppose  X,  being  seized  in  fee 
has,  by  his  first  marriage.  .1,  a  son,  and  B.  a  daughter,  and  by 
liis  second  marriage,  1),  a  son,  and  then  dies.  A  the  son  is  the 
Iieir  at  law.  If  A  in  fact  entered  and  became  seized  and  died, 
B  would  inherit  fi-om  liim  because  the  half  blood  was  excluded,^* 

«  Perrin  v.  Blake,   1  W.   Bl.   672  Gray  's  Cases  on  Prop.,  2nd  ed.  3.51. 
(1769);    5   Gray's   Cases   on   Prop.,  i"  Posf,    §S  380  382. 

2nd  ed.  89;  Kales'  Cases  on  Future  is  Lit.    8  8;    4    (iray's    Cases    on 

Interests,  260;    post,   M41.  Prop.,  2nd  ed.  8. 


16  Lit.     §12;     Co.     Lit.     ISb;      1 


35 


§  40]  INTRODUCTION    TO    THE   LAW   OF    REAL   PROPERTY        [Ch.  I 

but  if  A  died  before  being  actually  seized,  then  descent  would 
be  traced  from  A',  and  D  the  son  by  the  second  marriage  would 
be  the  heir  at  laAv.^"  The  feudal  rule  that  descent  must  be 
traced  from  the  person  last  seized  made  a  practical  difference 
where  the  descent  of  reversions  and  remainders  was  being 
traced.  For  instance,  if  subject  to  a  life  estate  in  A,  B  had  a 
remainder  in  fee  and  died  before  A,  B  was  not  actually  seized. 
Nevertheless,  descent  was  traced  from  him  because  he  was  the 
first  purchaser.  The  feudal  law  allowed  this  much  relaxation 
in  favor  of  the  remainderman  named.  If,  in  the  above  case, 
B  died  before  A,  leaving  as  his  heir  C,  and  G  thereupon  died 
before  A,  on  A's  death  descent  was  traced  from  B,  and  not 
from  C.20 

In  the  case  of  an  estate  tail,  however,  descent  is  traced  from 
the  first  purchaser — the  first  donee  in  tail.  The  issue  in  tail 
take,  not  one  from  another,  but  one  after  another.  Thus,  if 
A  having  an  estate  tail,  has  a  son  A'  and  daughter  Y,  by  his 
first  wife,  and  a  son  Z  by  his  second  wife,  and  dies,  the  son  by 
the  first  wife  takes  the  estate  tail.  If  he  dies  without  issue,  then 
the  son  by  the  second  wife  takes,  for  Z  takes  from  Ar"^  If 
descent  were  traced  from  X,  Y  would  take,  and  the  property 
would  escheat,  rather  than  that  the  half  blood,  Z,  should  inherit. 

§40.  Feudal  rules  for  descent  of  property:  22  When  the 
person  last  seized,  or  the  person  from  whom  we  are  to  trace 
descent  has  been  found,  we  have  either  one  of  two  cases:  first, 
where  the  XJerson  last  seized  has  issue ;  or  second,  where  the  per- 
son last  seized  has  no  lineal  descendants.  In  the  former  case, 
descent  was  traced  according  to  the  following  feudal  rules: 
(1)  The  male  issue  must  be  admitted  before  the  female.  (2) 
Where  there  were  two  or  more  males  in  equal  degree  the  eldest 
inherited,  but  the  females  all  together.  (3)  The  lineal  descend- 
ants in  infinitum  of  any  person  represented  their  ancestor. 

Where  there  were  no  lineal  descendants,  it  is  first  necessary 
to  observe  that  descent  among  collaterals  could  only  be  to  those 
who  Avere  of  the  blood  of  the  first  purchaser.    This  meant  that 

19/(7.  22  Canons  of  Descent,  2  Bl.  Com. 

20 Post,   §§380-382.  c.   14,   201-240;   4   Gray's  Cases  on 

21  Co.      Lit.      26b      (Mandevillc's      Prop.  2nd  ed.  9. 
Case) ;  4  Oray's  Cases  on  Prop.,  2nd 
cd.  9. 

36 


ClI.  I]  FEUDAL    LAND    LAW  [§41 

land  which  descended  from  the  fatlier  to  the  doeeascd  must 
go  to  the  collateral  heir  on  the  father's  side.  It  would  escheat 
rather  tlian  go  to  the  collateral  heir  on  the  mother's  side.  Lands 
which  descended  from  the  mother  to  the  deceased  must  go  to 
the  collateral  heir  on  the  mother's  side.  It  would  escheat  rather 
than  go  to  the  collateral  heir  on  the  father's  side.  If  the  de- 
ceased were  himself  the  first  purchaser,  the  heir  might  be  found 
from  among  the  collateral  relations  on  either  side.  Thus,  it  was 
first  necessary  in  all  cases  of  collateral  descent  to  ascertain 
from  among  what  class  of  collateral  relations  the  heir  might  be 
found.  When  this  had  been  ascertained  the  following  rules 
applied:  (1)  The  inheritance  cannot  ascend — that  is  to  say, 
neither  the  father  nor  mother  could  take  by  descent  from  the 
deceased.  An  uncle  would  inherit  before  the  father.  (2)  The 
male  issue  shall  be  admitted  before  the  female — that  is,  the  male 
collateral  relations  shall  be  preferred  to  the  female.  (3)  When 
there  are  two  or  more  males  in  equal  degree  the  eldest  only  shall 
inherit,  but  the  females  all  together.  (4)  The  lineal  descend- 
ants in  infinitum  of  any  persons  deceased  shall  represent  their 
ancestor,  that  is,  shall  stand  in  the  same  place  as  the  person 
himself  would  have  done  had  he  been  living.  (5)  The  collateral 
heir  of  the  person  last  seized  must  be  his  next  collateral  kinsman 
of  the  Avhole  blood.  (6)  In  collateral  inheritances  the  male  stock 
shall  be  preferred  to  the  female,  that  is,  kindred  derived  from 
the  blood  of  the  male  ancestors,  however  remote,  shall  be  ad- 
mitted before  those  from  the  blood  of  the  female,  however  near ; 
unless  where  lands  have  in  fact  descended  from  a  female. 

In  this  country  these  rules  of  descent  have  been  replaced  by 
statutory  provisions  of  descent  based  upon  the  equal  division  of 
property  amongst  children  or  issue  per  stirpes,  or  amongst  col- 
laterals standing  in  the  same  degree  of  relationship  to  the  de- 
ceased. 

§41.  Devise:  Devises  of  land  are  here  noticed  for  the 
purpose  of  emphasizing  that  they  were  not  permitted  by  the 
feudal,  or  common  law  of  land.  In  some  localities  by  custom, 
devises  were  permitted  and  the  devisee  after  the  death  of  the 
devisor  might  enter  and  hold  without  livery  of  seisin.-^ 

23  Lit.    §167;    1  Gray's  Cases  on 
Prop.  2nd  ed.  357. 

37 


§42]  INTRODUCTION    TO   THE   LAW   OF   REAL   PROPERTY        [Ch.  I 

§  42.  Livery  of  seisin :  Since  it  was  of  vital  importance  to 
the  maintenance  of  the  fendal  system  that  it  always  be  clear 
who  had  possession  of  a  freehold,  so  that  it  might  be  known 
who  was  liable  for  the  feudal  dues,  it  was  natural  that,  so  far 
as  the  transfer  of  interests  were  permitted  at  all,  they  should 
be  effected  by  a  livery  or  transfer  of  the  seizin  or  feudal  posses- 
sion. Relying  upon  some  picturesque  phrases  of  the  old  books 
one  is  apt  at  the  present  day  to  exaggerate  the  importance  of 
the  delivery  by  the  feoffor  of  a  ring  of  the  door,  or  a  turf,  or 
twig,  upon  the  land  to  the  feoffe  in  the  name  of  seisinr^  The 
really  important  thing  was  that  the  feoffor  actually  hand  over 
the  possession  to  the  feoffee,  so  that  as  the  feoffor  moved  off  the 
land  the  feoffee  moved  on.  A  ceremonial  livery  where  this  did 
]iot  occur  was  of  extremely  doubtful  and  precarious  effect. 
Where  the  actual  possession  changed  hands  the  liverij  was  said 
to  be  a  livery  in  deed  or  in  fact.--^  There  Avas  also  livery  in  law. 
This  occurred  where  the  feoffor  or  feoffee  being  in  view  of  the 
land,  but  not  on  it,  the  feoffor  directed  the  feoffee  to  take  pos- 
session of  a  freehold  and  the  feoffee  did  so.  But  the  livery  was 
only  complete  on  the  actual  transfer  of  possession,  and,  if  either 
the  feoff'or  or  forffee  died  before  that  occurred,  the  attempted 
livery  was  ineffective.'^ 

The  rule  was  that  all  freehold  interests  which  possibly  could, 
must  be  transferred  by  livery  of  seizin.  Practically,  that  meant 
that  when  the  feoffor  had  a  present  freehold  interest  in  pos- 
session which  he  desired  to  transfer  he  was  obliged  to  do  it  by 
livery  of  seisin.^'^  If  the  feoffor  had  a  tenant  at  will  in  posses- 
sion, he  must  determine  the  estate  at  will  and  make  livery  of 
seisin. 

§  43.  Grant  and  attornment — Release :  Some  freehold  in- 
terests, however,  could  not  be  transferred  by  livery  of  seisin. 
That  was  so  where  a  tenant  for  life,  or  in  tail,  was  in  possession, 
or  where  a  tenant  for  years  was  in  possession,  and  the  one  de- 
siring to  make  the  transfer  had  a  reversion  or  remainder  only. 
The  holder  of  the  interest  by  way  of  reversion  or  remainder, 

24  Co.  Lit.  48a;  1  Gray's  Cases  on  -^  Lit.    §59;    1    Gray's   Cases    ou 

Prop.  2nd  cd.  ."..52.  Prop.  2nd  ed.  352. 

^5  Id. 

26  Co.  Lit.  48b ;  1  Gray 's  Cases  on 
Prop.  2nd  ed.  352. 

38 


CH.  I]  FEUDAL    LAND   LAW  [§  43 

had  no  immediate  riyht  of  possession.  lie  could  not  enter  upon 
the  possession  of  his  tenant  and  make  any  lawful  livery.  Henee 
he  could  not  transfer  at  all  unless  some  method  other  than  livery 
■were  adopted.""  As  a  matter  of  fact  the  transfer  of  a  future 
interest  was  permitted  by  p:rant,  that  is  to  say,  an  instrument 
under  seal,  called  a  grant.-''  To  supply  the  place  of  livery 
of  seiifin  or  transfer  of  the  feudal  possession,  the  tenant  in 
possession  was  obliged  to  attorn, =<<>  or  assent  to  the  grant,  thereby 
becoming  the  tenant  of  the  grantee  and  holding  of  him.  The 
grant  was  wholly  void  and  ineffective  if  no  attornment  oc- 
curred. To  be  eiFective,  attornment  must  occur  in  the  life  of 
the  grantor.31  A  grant  by  the  king,  or  to  the  king,  however, 
was  good  without  an  attornment.^^  Xq  attornment  was  nec- 
essary where  the  reversion  was  transferred  by  descent,  escheat 
or  devise."'3  The  Act  of  4  Anne,  c.  16,  §  9  (1705),  abolished  the 
requirement  of  attornment  in  all  cases.-"^'*  That  Act  has  been  re- 
enacted  in  this  country;  ^'^  or  else  is  in  force  by  reason  of  our 
adoption  of  the  English  common  law  and  English  statutes  passed 
prior  to  the  Revolution ;  or  else  because  attornment  is  regarded 
as  so  far  inconsistent  with  our  manners  and  customs  that  it  was 
never  incorporated  into  our  law.-'"  In  one  instance,  however, 
where  the  common  law  and  statutes  of  England  in  force  prior 
to  1609  were  expressly  made  part  of  the  state  law,  the  court 
said  that  the  Statute  of  Anne  was  not  in  force  and  that  attorn- 
ment was  necessary. 2" 

Release  was  the  special  name  given  to  a  conveyance  by  grant 
by  a  reversioner  or  remainderman,  when  out  of  possession,  to 

28  Williams     on     Real     Property,  256,  257;  1  Gray's  Cases  on  Prop., 

18th    ed.    309;    1    Gray's   Cases    on  2nd  ed.  354,  note. 

Prop.,  2nd  ed.  353.  ^^  1    Gray's   Cases   on    Prop.,   2nd 

-!•  Co.   Lit.   172a;    1  Gray's  Cases  ed.  355. 

on  Prop.,  2nd  ed.  353.  -^  Stimson,       Ameri.nn        Statute 

3"  Lit.   §  551 ;   Co.  Lit.  309a,  b ;    I  Law,  §  2009. 

Gray's  Cases  on  Prop.,  2nd  ed.  353,  -6  Per  Shaw,  C.  J.,  in  Burden  v. 

:{54.  Thayer,   3    Met,    76,    78;    1    Gray's 

:'i  Co.   Lit.  309a;    Lit.   §§567-569;  Cases  on  Prop.,  2nd  ed.  355,  note  2. 

1    Gray's   Cases   on    Prop.,    2nd    ed.  :'•  Fisher  r.  Deering,  60  111.   114; 

354,  355.  1    Gray's   Cases    on    Prop.,    1st    ed. 

•12  Co.  Lit.  .309a,  b;  1  Gray's  Cases  446.      For    the    law    in    Illinois,   see 

on   Prop.,   2nd   ed.,   354.  post,    §379. 

33  2  Shep.  Touch.   (Preston's  ed.), 

89 


§  44]  INTRODUCTION    TO   THE  LAW   OF    REAL   PROPERTY        [Ch.  I 

the  teiiaut  who  was  in  possessioii.^s  n  operated  without  any- 
further  formality  to  invest  the  tenant  at  once  with  the  estate  of 
the  releasor. 

§  44.  Conveyances  by  record:  These  were  fines  and  re- 
coveries. The  form  of  these  collusive  suits  has  been  already 
sufficiently  described. ^^ 

§  45.  Conveyance  of  estates  less  than  freehold :  Terms  for 
years  are  non-feudal  estates.  They  have  the  attributes  of  per- 
sonal property.  So  far  as  they  are  concerned  seism  is  of  no 
importance.  Hence  in  their  creation  and  transfer,  livery  of 
seisin,  or  its  equivalent,  was  unnecessary.  Terms  for  years 
could  be  created  by  parol.  But  they  were  not  fully  launched 
as  estates  until  the  tenant  had  entered.^^  Before  entry  he  had 
but  an  inter  esse  termini^^  The  tenant  might  surrender  his 
interest  by  parol  and  this  extinguished  the  term  without  any 
other  formality.  It  was  essential,  however,  to  such  a  sur- 
render by  parol  that  it  be  made  to  the  person  having  the  next 
estate  in  reversion  or  remainder,  so  that  the  estate  surrendered 
would  merge  in  the  estate  of  the  surrenderee  and  thereby  be- 
come extinguished.'* 2  This  Statute  of  Frauds  of  Charles  II. 
required  surrenders,  except  those  by  operation  of  law,  to  be 
in  writing. 

§  46.  Disseisin  and  tortious  conveyance:  Disseisin  was  the 
wrongful  entry  upon  the  land  and  dispossession  of  the  free- 
holder.^ 3  Today  we  regard  the  disseisor  as  the  wrongdoer,  and 
the  disseisee  is  still  the  owner ;  but  so  important  was  the  fact  of 
seisin  to  the  feudal  system  that  seisin  unlawfully  obtained,  but 
nevertheless  maintained,  was  favored  in  one  way  at  least,  which 
is  unknown  today.  The  disseisee  was  reduced  to  a  mere  right 
of  entry  which  was  barred  if  the  disseisor's  heir  succeeded  by 
inheritance  before  the  disseisee  recovered  the  seisin.  The  right 
of  entry  of  the  disseisee  was  said  to  be  tolled  by  descent  cast. 
Thereupon  the  disseisee  was  put  to  his  real  action.  His  right  of 
entry  was  gone."** 

38  Lit.  §§444,  445,  459,  460;  1  «  Co.  Lit.  337b;  1  Gray's  Cases 
Gray's  Cases  on  Prop.,  2nd  ed.  356.  on  Prop.,  2nd  ed.  356. 

39  Ante,  §  17.  ^3  Leake,    Digest    of    Land    Law, 

40  Lit.  §58;  Co.  Lit.  46b;  1  Part  I,  56;  1  Gray 's  Cases  on  Prop., 
Gray's  Cases  on  Prop.,  2nd  ed.  342.  2nd  ed.  357. 

41  Id.  44  Challis   on   Keal   Property,   2nd 

40 


Ch.  I]  FEUDAL   LAND    LAW  [§47 

Any  person  having  actual  possession  could  by  feoffment  invest 
another  with  the  seisin  of  an  estate  of  freehold  in  fee,  fee  tail, 
or  for  life.  It  made  no  difference  that  the  feoffor  had  no  right  to 
possession  and  no  seisin  and  no  estate.  It  made  no  difference 
whether  the  feoffor  of  the  fee  had  an  estate  for  years,  or  for 
life.  In  any  case  the  feoffment  operated  to  invest  the  feoffee 
with  a  feudal  estate  as  designated.  In  short,  one  could  by  livery 
of  seisin  create  in  another  a  greater  estate  than  he  had.  The 
feoffment  was  in  that  case  called  a  tortious  feoffment,  or  tor- 
tious conveyances^  When  a  tenant  for  life  made  a  tortious  feoff- 
ment in  fee,  it  operated  to  forfeit  the  life  estate  and  at  once 
disseise  the  reversioner  or  remainderman.  Such  was  taken  to  be 
the  law  until  Lord  Mansfield  determined  in  Taylor  v.  Horde,^^ 
that  the  disseisin  of  the  remainderman  or  reversioner  should  be 
considered  a  disseisin  at  his  election.  He  might  elect  to  treat  it 
as  a  disseisin  and  enter,  or  he  might  elect  to  treat  the  life  estate 
as  still  outstanding  in  the  tortious  feoffee.  This  was  an  innova- 
tion, but  it  was  also  a  blow  at  the  tortious  operation  of  feoff- 
ments. An  Act  of  8  &  9  Victoria,  chapter  106,  section  4,  abol- 
ished all  tortious  operation  of  feoffments. 

In  this  country  the  common-law  doctrine  of  disseizin  and  tor- 
tious conveyance  was  in  force  to  some  extent  in  the  colonies  and 
States  on  the  Atlantic  seaboard,  but  the  tortious  effect  of  such 
conveyances  has  been  abolished  directly  by  statute,  or  ceased 
because  the  conveyance  by  livery  has  itself  fallen  into  disuse. 

§  47.  InaJienability  of  mere  rights  of  entry:  Today,  Avhen 
we  regard  ownership  as  the  important  thing,  it  would  seem  ab- 
surd to  say  that  one  whose  land  Avas  in  the  possession  of  a 
disseisor  had  nothing  which  he  could  alienate.  Indeed,  no  such 
rule  now  exists,  but  the  person  disseised  may  alienate  his  rights 
or  his  so-called  title  with  entire  freedom.  Not  so  in  the  feudal 
law.  Professor  ^Maitland  suggests  that  the  feudal  holder  did  not 
conceive  of  the  disseisee  having  anything  which  he  could  convey. 
He  had  a  right  to  repossess  himself  of  the  seisin,  but  if  he  did 
not  do  that,  he  had  nothing  which  could  be  made  the  subject 
of  transfer.-*'^ 

ed.    371-374;     1    Gray's    Cases    on  46 1  Burr.  60. 

Prop..  2nd  ed.,  357,  358.  47  "Mystery    of    Seisin,"    2    Law 

45  Id.  Quar.  Eev.  481. 

41 


§  48]  INTRODUCTION    TO    THE   LAW   OF   RE.M.   PROPERTY        [Ch.  I 

§48.  Inalienability  of  contingent  future  interests:  Con- 
tingent future  interests  which  were  valid  under  the  feudal  land 
laAv,  such  as  rights  of  entry  for  condition  broken,  possibilities 
of  reverter,  and  contingent  remainders,  were  inalienable.  The 
contingent  remainder  in  particular  was  void  till  it  vested.  The 
rule  of  inalienability  inter  vivos  of  such  interests  has  come  down 
to  the  present  time.** 

*sPost,  §320. 


42 


CHAPTER  II. 
LAND  LAW  UNDER  THE  STATUTE  OF  USES. 

TITLE    I. 
USES  BEFORE  THE  STATUTE. 

§49.  Uses  defined:  There  is  nothing  mysterious  or  difti- 
eult  about  the  conception  of  a  use.  "Use"  is  simply  the  name 
for  what  today  we  call  a  trust  when  speaking  about  the  relation 
created  where  A  holds  the  legal  title  of  property  as  ti-ustee  for  B. 
Thus,  when  before  the  time  of  Henry  VIII.,  A  was  seized  in 
fee  of  land  for  the  use  of  B  and  his  lieirs,  A  had  tlie  seLsin  as 
trustee  for  B.  A  was  called  the  feoffee  to  uses.  B  was  the 
cestui  que  ^ise.  The  difficulty  in  understanding  the  law  of  uses 
arises  largely  in  determining  the  origin,  following  out  the  de- 
velopment, and  observing  the  purposes  of  uses,  and  in  perceiving 
the  evolution  which,  under  the  Statute  of  Uses,  went  on  in  modes 
of  conveying  land  and  the  estates  which  might  be  validly  created. 

§  50.  Origin  of  uses:  ^  From  the  time  of  the  Norman  Con- 
quest large  amounts  of  land  were  given  to  religious  houses.  The 
crown  and  the  feudal  overlords  became  jealous  of  such  gifts,  for 
by  them  a  new  tenure  was  created,  that  is,  frankalmoigne  tenure. 
The  only  services  required  were  general  prayers  for  the  donor's 
soul.  The  religious  house  was  a  corporation  and  the  incidents 
of  the  tenure  were  insignificant.  The  Statutes  of  Edward  I.  at- 
tempted to  stop  tiiese  gifts  in  frankalmoigne  tenure  to  religious 
houses.  The  Statute  of  Quia  E nipt  ores  prohibited  the  creation 
of  any  new  frankalmoigne  tenures  except  by  the  king.  The 
Statute  of  Mortmain  prohibited  the  acquisition  of  lands  by  re- 
ligious corporations.  To  avoid  the  Statute  of  Mortmain  the  re- 
ligious corporations  resorted  to  common  recoveries,  already  de- 
scribed,- by  which  tliey  pretended  to  recover  back  lands  of  which 

1  The  description  here  given  of  the  -  Ante,  §  17. 

origin  of  uses  is  taken  largely  from 
Pollock  on  Land  Laws,  89. 

43 


§  51]     INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY  [Ch.  II 

they  had  already  been  possessed  and  seized.  In  the  same  session 
of  Parliament  that  the  Statute  De  Donis  was  passed  this  device 
was  stopped.  Again  the  religions  houses  evaded  the  law  by  a 
conveyance  to  a  third  party  for  their  use.  This  again  was 
stopped  by  a  Statute  of  15  Richard  II.  (1391).  The  idea  of 
taking  title  to  land  in  A  for  the  use  of  B  survived,  however,  for 
it  was  found  to  serve  a  useful  purpose  for  laymen.  Thus,  where 
the  cestui  que  use  was  attainted,  a  forfeiture  was  avoided.^  There 
was  no  payment  to  the  lord  on  the  death  of  the  cestui.  A  num- 
ber of  feoffees  que  use  were  kept  seized  so  that  there  could 
never  be  a  succession  of  the  legal  seisin  by  death.  The  incidents 
of  wardship  and  marriage  were  avoided,  but  wardship  and  relief 
were  restored  by  a  Statute  of  4  Henry  VII.  in  spite  of  the  use.^ 
The  cestui  que  use  practically,  had  power  to  make  a  will  since 
he  might  by  testamentary  declarations  direct  for  whose  use 
the  feoffees  que  use  should  hold.^  The  device  of  a  use  was  also 
employed  to  avoid  the  payment  of  debts. 

Uses  represented  a  distinct  movement  against  the  feudal  land 
law.  They  provided  a  means  for  mitigating  the  burden  of  the 
incidents  of  feudal  tenure  and  of  achieving  a  greater  liberty  on 
the  part  of  the  real  owner — that  is,  the  one  who  held  the  use 
— in  dealing  with  his  land  as  he  pleased,  and  without  the  formali- 
ties of  conveyancing  required  by  the  feudal  law. 

§  51.  Enforcement  of  the  use  by  the  cestui :  At  first  the 
cestui  que  use  had  no  standing  in  any  court  for  the  enforcement 
of  the  use.  The  feoffees  did  their  duty  in  carrying  out  the  pro- 
visions of  the  use  solely  by  reason  of  the  power  of  the  church 
over  the  consciences  of  the  feoffees.  About  the  time  of  Edward 
III.,  however,  the  chancery  began  to  enforce  the  use  of  the  cestui 
against  the  feoffee  by  specifically  requiring  the  feoffee  to  perform 
the  trust.*^  At  first  the  use  was  enforced  only  against  the  orig- 
inal feoffees.  It  was  not  enforced  against  any  one  who  had  a 
conveyance  from  the  feoffees,  even  though  such  transferee  paid 
no  value  and  had  full  notice  of  the  use.  Later,  however,  the 
rights  of  the  cestui  were  enforced  against  every  one  who  took 

3  Anonymous,  Jenk.  190  (22  H.  s  Gilbert  on  Uses,  35;  Bacon  on 
VII.);  1  Gray's  Cases  on  Projj.,  Uses,  16,  20;  1  Gray's  Cases  on 
2nd  ed.  369.  Prop.,  2nd  ed.  368,  369. 

4  1  Gray 's  Cases  on  Prop.,  2nd  ed.  R  Keilw.  42,  pi.  7  (1502);  1 
370,  note.  Gray's  Cases  on  Prop.,  2nd  ed.  368. 

44 


ClI.  II  j  STATUTE   OF   USES  l§  53 

from  the  feoffees  unless  he  were  a  bona  fide  purchaser  for  value. 
In  that  case  the  cestui  had  his  remedy  against  the  feoffees  for 
breach  of  trust.  At  first  the  heir  of  the  surviving  feoffee  to  uses 
was  not  bound  by  the  use.  Later  the  chancery  enforced  the  use 
against  him.  This  occurred  as  early  as  the  time  of  Henry  VI.^ 
The  chancery  would  compel  the  feoffee  to  uses  to  add  to  their 
number  if  the  cestui  q^ie  use  so  desired.  The  cestui  que  use 
could  assign  his  use  without  feoffment,  deed,  attornment,  or  any 
other  common-law  formality,  and  the  chancery  would  enforce 
such  assignment.^  An  estate  of  inheritance  in  the  use  de- 
scended according  to  the  rules  of  the  common  law  or  special 
custom.** 

§  52.  Position  of  the  feoffee  and  cestui  que  use  at  law  as 
distinguished  from  their  position  in  the  chancery:  Outside 
of  chancery  the  use  received  no  recognition  in  any  court.  Out- 
side of  chancery  the  cestui  who  was  in  possession  of  land  was  a 
mere  tenant  at  will.  The  feoffee  to  uses  held  the  feudal  or  legal 
title.  He  had  the  seisin  and  was  liable  for  all  the  services  and 
incidents  of  the  feudal  tenure. ^<^ 

TITLE  II. 

THE  STATUTE  OF  USES. 

§  53.  The  Statute  of  Uses :  Of  all  the  statutes  affecting  the 
law  of  real  property  the  Statute  of  Uses  is  the  most  famous 
and  in  its  effect  upon  the  land  laws  the  most  far-reaching.  The 
statute  revolutionized  the  law  of  conveyancing  and  greatly  in- 
creased the  freedom  of  creating  future  interests  in  land.  Never- 
theless, the  forces  which  secured  the  statute  were  reactionary. 
The  statute  was  passed  in  the  interests  of  the  feudal  lords  who 
took  alarm  at'  the  inroads  upon  feudal  tenures  which  were  ef- 
fected by  means  of  uses.  It  was  their  purpose  by  the  Statute  of 
Uses:  (1)  To  abolish  wills  of  real  estate;  (2)  To  prevent  any 
conveyance  which  would  not  have  been  good  at  common  law; 
(3)  To  prevent  the  existence  of  any  use  apart  from  the  seisin; 

1  Id.  10  Anonymous,   Jouk.    190    ("22    H. 

8  Bacon  on  Uses,  16;  1  Gray's  VII.);  1  Gray's  Cases  on  Prop., 
Cases  on  Prop.,  2nd  ed,  368,  note.  2nd  ed.,  3t69,  .370. 

9  2  Roll.  Ab.  780 ;  1  Gray 's  Cases 
on  Prop.,  2nd  ed.  368. 

45 


§  ')S]  INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY  [Ch.  II 

(4;^  To  destroy  the  secrecy  of  conveyances  by  requiring  all  con- 
veyances to  be  effected  by  the  common-law  modes. 

For  accomplishing  these  results  it  was  provided  ^^  that  ''where 
any  person  or  persons  stand  or  be  seised,  or  at  any  time  hereafter 
shall  happen  to  be  seised  *  *  *  to  the  use,  confidence  or 
trust  of  any  other  person  or  persons,  *  *  *  that  in  every 
such  case,  all  and  every  such  person  and  persons,  *  *  *  shall 
from  henceforth  stand  and  be  seised,  deemed  and  adjudged  in 
lawful  seisin     *  *     of  and  in  such  like  estates  as  they  had 

or  shall  have  in  use,  trust  or  confidence  *  *  *."  Thus  if  an 
estate  in  fee  were  transferred  to  A  and  his  heirs,  to  the  use  of 
B  and  his  heirs,  A  stood  seized  of  an  estate  in  fee,  to  the  use  of 
B  and  his  heirs,  and  B  became  at  once  seized  of  a  fee  by  opera- 
tion of  the  statute. 

The  statute  only  applied  where  one  was  "seized"  of  land  to 
the  use  of  another.  Hence  the  statute  only  operated  when  a 
use  was  raised  of  a  freehold,  since  only  of  a  freehold  was  one 
seized.  Thus,  if  A  had  a  term  for  years  and  assigned  it  to  B, 
for  the  use  of  C,  the  statute  had  no  operation.12  So  long,  how- 
ever, as  the  estate  held  to  the  use  of  another  was  an  alienable 
freehold  it  was  not  necessary  that  it  be  a  freehold  of  which 
there  was  actual  seisin.  Thus,  a  vested  remainderman,  or  a  re- 
versioner after  a  freehold,  had  no  actual  ^eisin  ^^  and  yet  such 
reversions  and  remainders  could  be  transferred  to  uses  and  the 
statute  operated,  i-*  This  may  fairly  have  rested  upon  the  terms 
of  the  statute  which  refers  to  persons  standing  seized  of  ' '  rents, 
services,  reversions,  remainders,"  to  the  use  of  another.     But 

1127    Hen.    VIIT.    c.   10    (1536);  Cases  on  Prop.,  1st  ed.  524.    Never- 

1   Gray's   Cases   on   Prop.,   2nd   ed.  theless,  if  the  same  rent  charge  were 

372.  granted   to   A   and  his  heirs   to   the 

12  The  statute  does  not  execute  a  use   of  B   and  his   heirs,   B  was   in 

use  of  personalty;   Smith  v.   Smith,  actual    possession    or    seisin    of    the 

254  111.  488.  ie»t  at  once  by  the  Statute  of  Uses. 

^  13P05*,  §30.  Hoelis  V.  Blain  (1864),  18  C.  B.  N. 

14  Saunders  on  Uses,  5th  ed.  106 ;  S.  90 ;   1  Gray 's  Cases  on  Property, 

1    Gray's  Cases  on   Prop.,   2nd   ed.  2nd  ed.  404.     If  before  the  Statute 

,'597.     So  if  a  rent  charge  is  granted  of    Uses   would    execute   the   use   to 

to  A  and  his  heirs,  A  was  in  by  the  B,  A  must  have  had  an  actual  sei- 

eomnion  law  and  had  no  possession  sin,  B  could  have  had  no  actual  pos- 

or    seisin   of   the  rent   till   the   first  session  or  seisin  by  way  of  use  till 

payment    was   made.      Orme's   Case  A  was  seized  or  possessed,  according 

(1872)  L.  E.  8  C.  P.  281;  1  Gray's  to   the   common   law.     It   is,   there- 

46 


ClI.  II]  STATUTE   OF    USES  [§  ■)') 

no  use  could  be  raised  by  the  attempted  transfer  of  an   in- 
alienable future  interest,  such  as  a  contingent  remainder. ^^ 

TITLE  III. 
USES  AFTER  THE  STATUTE. 

Topic  1. 
Uses  Raised  on  Transmutation  of  Possession. 

§54.  Defined:  This  rather  formidable  phraseology  con- 
tains a  simple  idea.  Uses  are  raised  upon  transmutation  of  pos- 
session when  there  is  a  transfer  of  the  seisin,  according  to  the 
requirements  of  the  feudal  law,  to  A,  with  a  use  raised  in  favor 
of  another — let  us  say,  B.  The  phrase  "transmutation  of  pos- 
session" means  merely  that  there  has  been  a  transfer  of  the 
seisin  according  to  the  requirements  of  the  feudal  land  law. 
When  such  a  ti-ansfer  is  made  to  A  and  his  heirs,  and  a  use  is 
raised  in  any  way  in  favor  of  B,  we  have  a  use  raised  on  trans- 
mutation of  possession. 

§  55.  Transmutation  of  possession  and  an  express  declara- 
tion of  the  use:  Assuming  then  that  there  is  a  transfer  of 
seisin  according  to  the  requirements  of  the  feudal  land  law  to  A 
and  his  heirs,  what  are  the  different  ways  in  which  a  use  may 
be  raised  in  favor  of  another  1  The  easiest  method  of  raising  the 
use  is  by  an  express  declaration  of  it.  Thus,  if  upon  the  con- 
veyance to  A  and  his  heirs,  a  use  be  expressly  declared  in  favor 
of  B  and  his  heirs,  the  use  in  fee  is  raised  in  B  which  the  statute 
executes,  and  B  becomes  seized  in  fee  simple.'"  Until  the  Stat- 
ute of  Frauds  there  was  no  requirement  that  this  use  should 
be  evidenced  by  a  writing.  It  could  be  declared  orally  upon 
the  making  of  livery  of  seisin  to  A.  But  since  the  Statute  of 
Frauds,^  ^  the  declaration  must  be  evidenced  by  some  writing 
signed  by  the  party  declaring  the  use. 

fore,  plain  that  the  statute  executes  i«Broughton    i'.   Langley,  2  Salk. 

all  uses  of  freeholds  which  are  alien-       679     (1703);     1    Gray's    Cases    on 
able,    whether    there    is    any    actual       Prop..  2nd  cd.  377. 
standing  seized  to  uses  or  not.  '"29  Charles  II.  c.  3,  i7   (1676). 

15  Saunders  on  Uses,  5th  ed.  lOti; 
1  Gray's  Cases  on  Prop.,  2nd  ed. 
397. 

47 


§  56  J  INTRODUCTION    TO    THE  LAW   OF   REAL   PROPERTY     [  Ch.  II 

^  56.  Transmutation  of  possession  and  the  payment  of  a 
consideration:  If,  upon  the  feoffment  to  A  and  his  heirs,  the 
consideratiou  were  paid  by  B,  it  was  said  that  a  use  was  raised 
in  favor  of  B.  After  the  Statute  of  Uses,  however,  the  statute 
did  not  execute  any  use  in  favor  of  B,  so  that  B  would  have  the 
legal  estate.  When  B's  interest  was  enforced  by  the  courts,  it 
seems  to  have  been  as  a  trust  or  a  use,  which  the  statute  did 
not  execute,  and  not  as  a  use  which  it  did  execute.  Today  it  is 
believed  to  be  almost  universally  the  fact  that  the  person  pay- 
ing the  consideration,  and  taking  title  in  the  name  of  another, 
has  no  standing  to  claim  the  legal  title.  In  New  Hampshire, 
however,  the  court  saw  the  logic  of  the  position  which  gave  B, 
the  party  paying  the  consideration,  the  legal  title,  because  he 
had  a  use  before  the  Statute  of  Uses  and  after  the  Statute  of 
Uses  that  use  must  have  been  executed.  ^^ 

§  57.  Transmutation  of  possession,  declaration  of  the  use 
by  one  and  payment  of  the  consideration  by  another:  Sup- 
pose, upon  a  feoffment  to  A  and  his  heirs,  there  is  a  use  de- 
clared in  favor  of  B  and  his  heirs,  but  as  a  matter  of  fact  C  pays 
the  consideration.  Here  there  is  a  conflict  between  the  declara- 
tion of  the  use  and  the  payment  of  the  consideration.  Assuming 
that  a  use  is  raised  by  the  payment  of  a  consideration  alone  yet 
where  the  consideration  is  paid  by  one,  and  there  is  a  declaration 
of  use  for  another,  the  declaration  of  the  use  prevails  over  the 
payment  of  the  consideration  and  the  use  will  be  in  favor  of 
B  in  the  case  put.^^ 

§58.  Resulting  uses:  There  might  be  a  resulting  use,  or 
use  by  operation  of  law,  without  any  declaration  of  use  or  pay- 
ment of  any  consideration.  Thus,  Avhere  there  was  a  feoffment 
to  A  and  his  heirs  for  the  use  of  B  for  life,  there  would  be  a 
resulting  use  of  reversion  on  partial  use  in  favor  of  the  feoff or.^^ 
So,  where  there  was  a  feoffment  to  A  and  his  heirs,  but  no  con- 
sideration was  paid  by  A  or  any  one  else,  and  no  declaration 
of  the  use,  and  no  evidence  indicating  that  A   was  intended 

18  Hutchins  v.  Heywood,  50  N.  H.  20  Leake,    Digest    of    Land    Law, 

491 ;  Osgood  v.  Eaton,  62  N.  H.  .512 ;       107,  108 ;   1   Gray 's  Cases  on  Prop., 
Fellows  V.  Ripley,  69  N.  H.  410.  2nd  ed.   381,  382. 

if»  Same's  Case,  2  Roll.  Ab.  791 
(1609);  1  Gray's  Cases  on  Prop., 
2nd.  ed.  376. 

48 


CH.  II]  STATUTE   OF    USES  [§58 

to  have  the  beneficial  ownersliip,  tliere  was  a  resulting  use  of 
the  fee  in  favor  of  the  feoffor.  There  was,  in  short,  an  inference 
that  the  feoffor  intended  a  secret  use  foi-  himself.  No  doubt 
this  inference  was  justified  prior  to  the  Statute  of  Uses.  •  It 
was  then  no  doubt  extremelj'  common  to  make  feoffments  upon 
secret  resulting  uses  for  the  feoffor.  But  it  has  been  suggested 
that  at  the  present  day  no  such  inference  ought  to  be  made. 
It  was  held  as  late  as  1756  in  England  that  there  would  be  a 
resulting  use  to  the  conusor  of  a  fine.^i  There  is  no  resulting 
use,  however,  where  upon  a  feoffment  to  J.  a  use  is  declared 
to  Ay  or  A  pays  the  consideration.  Upon  such  a  transaction 
A  did  not  take  because  the  use  was  declared  to  him,  or  because 
he  paid  the  consideration.  lie  took  by  force  of  the  common- 
law  conveyance.  The  rule  Avas  that  where  he  could  take  the 
legal  title  by  the  common  law,  he  did  so  and  did  not  take  it  by  the 
Statute  of  Uses.  The  declaration  of  the  use  in  favor  of  A,  or 
the  payment  of  a  consideration  by  A,  was  in  that  case  merely 
rebutted  the  resulting  use.  A  consideration  paid  by  A,  how- 
ever slight,  was  sufficient  by  itself  to  rebut  any  possible  re- 
sulting use.  Thus,  where  A  was  the  ow-ner  in  fee,  subject  to  a 
term  for  years,  and,  by  release,  granted  the  reversion  to  the 
tenant  for  years,  without  any  declaration  of  the  use,  or  any 
payment  of  consideration,  the  resulting  use  was  held  to  be  re- 
butted by  the  fact  that  the  releasee,  the  tenant  for  years,  paid 
a  consideration  by  the  extinguishment  of  the  lease.--  So  where 
a  feoffment  w^as  made  to  A  for  life,  or  to  A  in  tail,  or  where 
A  was  given  a  term  for  years,  the  tenure  created  between  A 
and  the  feoffor,  rebutted  any  resulting  use  of  the  estate  actually 
attempted  to  be  ereated.^^ 

Where  a  feoffment  was  made  to  A  and  his  heirs  for  the  use 
of  the  feoffor  for  life,  the  resulting  use  of  reversion  on  partial 
use  was  to  A,  for,  if  it  had  been  to  the  feoffor,  then  the  whole 
transaction  would  have  resulted  in  the  feoffor's  having  the  fee 
as  if  he  had  made  no  conveyance.24     On  the  other  hand,  if  a 

21  Armstrong  v.  Wholesey,  2  Wils.  23  Leake,  Digest  of  Land  Law, 
19;  1  Gray's  Cases  on  Prop.,  2nd  107,  108;  1  Gray's  Cases  on  Prop., 
ed.  378.  2nd  ed.  382. 

22  Shortridge  V.  Lamplugh,  2  Salk.  =*  Dyer,  111b,  in  marg.;  Leake, 
678;  1  Gray's  Cases  on  Prop.,  2nd  Digest  of  Land  Law,  107,  108;  1 
ed.  376.  Gray's  Cases  on  Prop.,  2nd  ed.  375. 

Kales  Fut.  Int. — 4  49 


§  59]  INTRODUCTION    TO    THE   LAW   OF   REAL   PROPERTY     [Ch.  II 

feoffment  were  made  to  A  and  his  heirs  for  the  use  of  the  feoffor 
in  tail,  the  resulting  use  of  reversion  on  partial  use  was  in  favor 
of  the  feoffor,  because  it  was  proper  and  even  customary  for 
one  to  have  an  estate  tail  and  a  reversion  or  remainder  in  fee 
to  himself  afterwards.-^*  Finally,  it  should  be  noted  that  all 
resulting  uses  are  in  fee."^  Thus  if  A'  enfeoffs  A  and  his  heirs, 
to  the  use  of  B  and  his  heirs,  from  and  after  the  death  of  X,  the 
resulting  use  to  X  is  in  fee  and  not  for  life. 

Topic  2. 
Uses  Raised  AVithout  Transmutation  of  Possession. 

§  59.  Defined:  Today  there  is  no  objection  to  one  who  has 
the  legal  title  to  land  executing  a  declaration  of  trust  which 
turns  himself  into  a  trustee  for  such  persons  as  he  may  name. 
So  before  the  Statute  of  Uses,  there  was  no  objection  to  one 
seized  of  land  executing  a  covenant  or  a  contract  by  which  he 
declared  that  he  stood  seized  of  this  land  to  the  use  of  another. 
Wlien  this  was  done  with  certain  formalities,  about  to  be  men- 
tioned, a  use  was  raised  by  the  one  seized  of  land,  without  any 
transfer  whatever  of  the  seisin.  The  seisin  remained  where  it 
was  and  the  holder  of  that  seisin  simply  declared  to  whose  use 
he  held  it.  After  the  Statute  of  Uses  this  use  so  declared  was 
executed  by  the  statute  and  seisi^i  passed  at  once  to  the  cestiii 
que  use.  This  declaration  of  the  use  might  become  effective 
in  two  ways,  either  by  what  was  known  as  a  "valuable"  con- 
sideration paid,  or  bj^  a  consideration  of  blood  relationship  in 
the  person  for  whom  the  use  was  declared.  The  former  was 
called  a  "bargain  and  sale";  the  latter,  a  "covenant  to  stand 
seized." 

§  60.  The  bargain  and  sale  and  Statute  of  Enrollments :  A 
bargain  sale  was  merely  the  declaration  by  one  seized  that  he 
held  the  seisin  for  the  use  of  another.  It  was  essential  to  the 
enforcement  of  this  declaration  of  use,  as  a  use,  that  some  valu- 
able consideration  be  paid  to  the  one  declaring  the  use.  The 
consideration,  if  valuable,  might  be  ever  so  slight.  Thus,  a 
declaration  of  use  in  consideration  of  the  payment  of  a  pepper- 
corn was  an  enforceable  use  before  the  Statute  of  Uses.     The 

25  Id.  ed.    464,    465;    1    Gray's    Cases    on 

26  2  Hayes   on  Conveyancing,   otb       Prop.  2nd  cd.  .380. 

50 


Cm.   II)  KTATCTl^    OF    USES  I  ^  •  J  I 

effect  of  the  Statute  was  naturally  to  execute  the  use  so  raised 
and  by  this  means  confer  upon  the  cestui  the  legal  seisin.  This, 
of  course,  at  once  permitted  the  transfer  of  the  legal  title  with- 
out any  formality  whatever,  which  was  so  contrary  to  the  de- 
sires of  those  seeking  the  passage  of  the  Statute  of  Uses,  that 
the  Statute  of  Enrollments  was  at  once  enaeted,^^  providing 
that  bargains  and  sales  of  freeholds  to  be  valid  must  be  evi- 
denced by  a  writing  indented,  sealed,  and  enrolled  in  one  of 
the  king's  courts  of  record  at  Westminster.  Thus,  the  possibility 
of  conveying  a  legal  title  by  bargain  and  sale  without  any  for- 
mality whatever,  and  by  parol  was  apparently  avoided. 

§  61.  The  Statute  of  Enrollments  avoided  by  the  "lease  and 
release":  So  great  was  the  desire  of  the  English  landowner 
to  preserve  the  secrecy  in  designating  the  beneficial  interests 
of  the  land  which  had  been  enjoyed  before  the  Statute  of  Uses, 
that  the  ingenuity  of  conveyancers  was  taxed  to  the  utmo.st  to 
devise  a  means  of  avoiding  the  enrollment  in  the  public  records 
required  by  the  Statute  of  Enrollments.  A  loophole  in  the 
statute  was  found  by  reason  of  the  fact  that  it  applied  only  to 
bargains  and  sales  of  "freeholds."  It,  therefore,  followed  that 
it  did  not  apply  to  the  bargain  and  sale  of  a  term  for  years.  It 
followed  then,  that  one  seized  in  fee  could  orally,  upon  a  valu- 
able consideration,  however  slight,  declare  himself  seized  to  the 
use  of  A  for  a  term  of  years.  The  statute  at  once  executed 
the  use  and  ^1  had  the  term,  and  the  bargainor  had  the  rever- 
sion. Under  these  circumstances  the  bargainor  could  make  a 
common  law  conveyance  by  way  of  release  to  A,  and  by  this 
means  the  fee  would  be  transferred.  No  enrollment  was  re- 
quired for  the  release.  By  the  simple  process  then  of  first 
making  a  lease  for  one  year  to  A,  and  then  making  a  release 
of  the  fee  io  A,  A  was  in  possession  of  the  fee  without  any 
common  law^  formality  of  livery  of  seisin,  or  any  formality  of 
enrollment  under  the  Statute  of  Enrollments.  The  secrecy  of 
the  conveyance  was  preserved. 

At  common  law  the  lease,  to  have  been  wholly  effective,  re- 
quired an  entry  by  the  lessee,  and  the  conveyance  by  way  of 
release  would  have  been  ineffective  at  common  law  unless  the 
lessee  had  actually  entered.     But  the  force  of  the  Statute  of 

27  27  Hen.  VIII.,  c.  16   (1536)  ;  1 
Gray's  Cases  on  Prop.,  2nd  ed.  382. 

51 


§  62]     INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY   [Ch.  II 

Uses  was  to  give  to  the  lessee  the  legal  title  of  the  term  with- 
out entry,  so  that  the  release  to  the  lessee  was  sufficient  by 
the  common  law,  although  the  lessee  had  not  entered.-^  That 
enabled  the  lease  and  release,  to  be  drawn  in  a  solicitor's  office 
in  London,  many  miles  away  from  the  land  intended  to  be  con- 
veyed. Not  even  the  formality  of  the  tenant's  entering  upon 
possession  before  the  release  was  made,  was  necessarj^  to  the 
effectiveness  of  the  lease  and  release..  It  became  customary  to 
draw  the  lease  and  release  as  one  instrument,  the  first  part 
being  a  lease  for  one  year,  and  the  second  part,  the  release. 
Both  were  executed  at  the  same  time.  These  two  instruments 
taken  together  were  known  as  a  single  conveyance  by  way  of 
"lease  and  release."  ^^ 

§  62.  No  particular  form  of  words  is  necessary  to  make  a 
bargain  and  sale:  It  is  not  necessary  that  the  one  seized  of 
land  should  in  terms  declare  that  he  stands  seized,  or  contract 
or  covenant  that  he  stands  seized,  to  the  use  of  another.  That 
is,  in  fact,  what  he  does ;  but,  if  he  merely  purports  to  convey 
to  another,  and  that  other  pays  the  proper  consideration,  it  is 
as  effective  as  if  the  one  seized  had  covenanted  or  declared  that 
he  stood  seized  to  the  use  of  the  one  paying  the  consideration.^" 
Thus,  if  the  one  seized  executes  an  instrument  in  which  he  pur- 
ports to  convey  to  A  and  his  heirs,  in  consideration  of  £5  paid 
by  A,  the  instrument  is  sufficient  in  form  for  a  bargain  and 
sale.  If  signed,  sealed,  and  enrolled  according  to  the  Statute 
of  Enrollments,  it  is  a  valid  bargain  and  sale.  If  the  instru- 
ment is  under  seal  and  the  consideration  is  recited  to  have 
been  paid,  although  it  is  not  actually  paid,  still  the  presence 
of  the  seal  upon  the  instrument  prevents  the  grantor  from 
denying  that  some  consideration  was  paid.  It,  therefore,  pre- 
vents him  from  showing  that  a  state  of  facts  exists  which  would 
deprive  the  instrument  of  the  characteristics  of  a  bargain  and 
sale.  It  must,  therefore,  as  between  the  parties,  be  taken  as 
sufficient  in  form  for  a  bargain  and  sale.     Tliat  is  the  reason 

28Lutwich    V.    Mitton,    Cro.    Jac.  13th  ed.  187-189;  1  Gray 's  Cases  on 

604  (1620);  Gray's  Cases  on  Prop.,  Prop.,  2nd  ed.  395. 

2nd    ed.     388;     Barker     v.     Keete,  so  Edward     Fox's     Case,     8     Co. 

Freem.  249  (1678);  1  Gray's  Cases  93b    (1610);     1    Gray's    Cases    on 

on  Prop.,  2nd  ed.  389.  Prop.,  1st  ed.  489. 

29  Williams     on     Real     Property, 

52 


ClI.  IIJ  STATUTE   OF    USES  (§64 

for  llie  continued  recital  at  the  jjresent  day  of  the  payment  of 
a  consideration  wliich,  in  many  cases,  is  not  actually  paid,  and 
is  known  by  both  parties  not  to  have  been  paid. 

§  63.  Covenants  to  stand  seized:  The  special  characteristic 
of  the  bargain  and  sale  is  that  it  is  founded  upon  a  valuable 
consideration  paid  to  the  bargainor.  If,  however,  the  use,  in 
an  instrument  under  seal,  is  declared  in  favor  of  a  blood  re- 
lative of  the  bargainor,  it  is  said  to  be  founded  upon  a  good 
as  distinguished  from  a  vahiahle  consideration ;  and  the  use  is 
validly  created  in  favor  of  the  blood  relative.  The  technical 
name  given  to  this  declaration  of  use  is  a  "covenant  to  .stand 
seized."  Thus,  if  A  being  seized  in  fee,  purports  to  convey, 
by  an  instrument  \inder  seal,  to  B,  his  cousin,  all  the  elements 
are  present  to  furnish  the  basis  for  a  valid  declaration  of  a 
use  and  a  covenant  to  stand  seized.^^  The  Statute  of  Enroll- 
ments has  no  application.  If  the  blood  relationslup  exist  and 
the  instrument  is  under  seal,  the  form  of  it  is  immaterial.  It 
may  be  in  form  a  direct  conveyance  by  A  to  the  blood  relation. ^^ 
There  could,  however,  be  no  effective  covenant  to  stand  seised 
of  lands  afterwards  to  be  acquired  and  of  which  there  was  no 
seisin  at  the  time  of  the  covenant. ^^ 

§  64.  Summary:  To  illustrate  the  application  of  the  above 
principles  concerning  the  raising  of  uses  by  bargain  and  sale, 
and  covenants  to  stand  seized,  and  the  transfer  of  the  legal 
title  by  means  thereof,  under  the  Statute  of  Uses,  consider  the 
following  three  problems : 

Suppose  A,  in  consideration  of  one  dollar,  conveys  to  B  and 
his  heirs.  The  instrument  is  signed  but  not  under  seal.  Is  it 
a  good  bargain  and  sale?  Apart  from  the  Statute  of  Enroll- 
ments it  is.  It  complies  with  the  Statute  of  Frauds  because 
it  is  in  writing,  and  signed  by  A.  If  it  fails  as  a  bargain  and 
sale  it  is  because  the  Statute  of  Enrollments  is  applicable.  If 
the  question  arises  in  this  country  it  may  be  argued  that  the 
Statute  of  Enrollments  has  no  application.     The  fact  that  the 

31  Sharington   v.   Strotton,   Plowd.  (1757);    1    Gray's   Cases   on   Prop., 

298     (1565);     1    Gray's    Cases    on  2nd  ed.  391. 

Prop.,  2nd  ed.  384;   Callard  v.  Cal-  33  Yelverton    v.   Yelverton,    1   Cro. 

lard,  Moore,  687   (1593);   1  Gray's  El.  401  <1594) ;    1  Gray's  Cases  on 

Cases  on  Prop.,  2nd  ed.  386.  Prop.,  2nd  ed.  387. 

82  Roe    V.    Tranmer,    2    Wils.    75 

53 


§  65]     INTRODUCTION  TO  THE  LAW  OP  REAL  PROPERTY  [Ch,  II 

Statute  of  Enrollments  requires  enrollment  in  one  of  the  king's 
courts  of  record  at  Westminster,  or  else  in  the  county  where 
the  land  lies,  obviously  makes  it  inapplicable  to  the  colonies, 
and  consequently  it  has  not  come  dowTi  to  us  through  our  colonial 
governments.  If  the  Statute  of  Enrollments  does  not  apply,  so 
far  as  enrolling  is  concerned,  it  might  fairly  be  argued  that  it 
did  not  apply  at  all  because  it  should  not  be  taken  to  apply 
in  part  only.^-*  Hence,  in  this  country  no  seal  is  necessary  to 
the  validity  of  a  bargain  and  sale.  Some  courts,  however,  in 
this  country  are  found  holding  blindly  that  the  legal  title  can- 
not be  conveyed  without  an  instrument  under  seal.^^'  The  mis- 
conception has  arisen  by  following  the  dogmatic  statement  of 
Blackstone  that  to  every  conveyance  of  land  in  England  with- 
out livery  of  seizin  a  seal  is  necessary. ^^  Tliat  statement  is 
perfectly  sound  for  England,  for  there  the  Statute  of  Enroll- 
ments applied  and  required  the  seal. 

Suppose  A,  in  consideration  of  $....,  conveys  to  B  and  his 
heirs.  A  signs  and  the  instrument  is  under  seal.  As  some- 
times happens  the  blank  for  the  consideration  is  not  filled  in, 
and  no  consideration  is,  in  fact,  paid.  The  instrument  is  not 
good  as  a  bargain  and  sale  because  no  consideration  was  paid 
or  recited.  If  J?  is  a  blood  relative,  the  conveyance  is  good  as  a 
covenant  to  stand  seized. 

If  A  conveys  to  B  with  the  amount  of  the  consideration  left 
blank,  and  B  is  a  stranger  and  no  consideration  is  in  fact  paid, 
then  even  though  it  be  under  seal  it  fails  both  as  a  bargain  and 
sale  and  as  a  covenant  to  stand  seized.^^ 

Topic  3. 

Operation  of  the  Statute — Uses  Which  the  Statute  Did 

Not  Execute. 

§  65.  Operation  of  the  Statute :  The  Statute  of  Uses  oper- 
ated to  place  the  legal  seisin  and  title  at  once  in  the  cestui  que 

34  Tiedemen,    Real    Property,    3rd  32;    Irwin   v.   Powell,   188   111.    107; 

ed.,   §542.  Ashelford    v.    Willis,    194    111.    492; 

•■'S  Jackson  v.  Wood,  12  Johns.  (N.  Wilson  r.   Kruse,  270  111.   298,  302. 

Y.)    73   (1815);   3  Gray's  Cases  on  See    also,    Maupin    on    Marketable 

Prop.,  1st  ed.  233;  Watts  v.  Parker,  Title  to  Real  Estate,  2nd  ed.,  §  22. 
27  111.  224;  Barger  v.  Hobbs,  67  111.  38  0   Bl.   Com.   297,   312. 

592;    Barrett    v.    Hinckley,   124   111.  37  it  would  seem  that  title  should 

54 


CH,  II J  STATUTE   OF    USES  [§  67 

use.  It  followed  that  the  cestui  could  bring  an  action  of  tres- 
pass against  any  stranger  for  entering,  although  the  cestui  had 
not  entered.^"  The  statute  also  operated  to  convey  the  estate 
or  interest  designated  in  the  cestui  without  any  common  law 
formality.  Thus  the  use  of  a  term  placed  the  possession  of  the 
term  in  the  tenant  without  entry. 3='  The  use  of  a  reversion  or 
remainder  transfcred  the  reversion  or  remainder  without  any 
attornment.'*'* 

§  66.  Suppose  A,  seized  in  tail  or  for  life,  were  directed  to 
hold  to  the  use  of  one  in  fee:  It  was  the  law  before  the  statute 
that  such  a  use,  enforcible  in  chancery,  could  not  arise  out  of 
the  seisin  of  a  tenant  in  tail.*'  It  followed  that  after  the  stat- 
ute no  such  use  would  be  executed.  The  use  was  void  and  the 
feoffee  had  the  estate  tail  limited  to  him.^-  If,  however,  the 
feoffee  to  uses  were  seized  of  a  life  estate,  the  use  to  another 
would  be  executed  by  the  statute,  but  not  for  a  greater  estate 
than  the  life  estate  of  the  feoffee.-*^ 

§67.  Uses  which  the  statute  did  not  execute:  (1)  It  has 
already  been  observed  that  where  there  was  a  feoffment  to  A 
and  his  heirs  for  the  use  of  .1,  the  statute  did  not  operate.  .1  was 
in  by  the  common  law  and  Ihe  declaration  of  the  use  simply 
rebutted  any  possible  resulting  use.**  If,  however,  there  Avas  a 
feoffment  to  A  and  his  heirs  for  the  use  of  A,  B,  and  (\  all  were 
in  by  the  statute,  since  they  could  not  be  in  by  the  common  law.*'' 

pass  in  Illinois  by  virtue  of  R.  S.  Prop.,  2nd  ed.  354.  Quaere:  Must 
1874,  ch.  30  sec.  1.  But  see,  Red-  there  have  been  an  attornment  till 
mond  V.  Cass,  226  111.  120;  Catlin  the  Statute  of  Anne  {ante,  §43), 
Coal  Co.  V.  Lloyd,  180  111.  398;  2  in  order  that  the  assignee  might  col- 
Ill.  Law  Rev.,  269.  lect  rent? 

38  Anonymous  Cro.  El.  46  (lo82);  *i  Anonymous,     Bro.     N.     C.     by 

1    Gray's    Cases   on   Prop.,   2nd  ed.  March,     89;     1     Gray's     Cases     on 

396:     But    see    Lutwich    v.    Mitton,  Prop.,  1st  ed.  465. 

Cro.    Jac.    604     (1620);     1    Gray's  4:  Cooper    v.    Franklin,    Cro.    Jac. 

Cases  on  Prop.,  2nd  ed.  388.  400;   1  Gray's  Cases  on  Prop.,  2nd 

39Lutwich      V.      Mitton,      s-upra;  ed.   411.     Compare,  Dick  i-.  Ricker, 

Barker      v.      Keete,      Freem.      249  222  111.  413,  419. 

(1678);    1    Gray's   Cases   on   Prop..  ■•3  Bacon  on  Uses,  47;   Gilbert  on 

2nd  cd.  :^89.  Uses,  297;  Cruise  on  Uses,  96;  Mcro- 

♦0  Gilbert   on  Uses,  73;    1  Gray's  dith  r.  .Toanp.  Cro.  Car.  244. 

Cases  on  Prop.,  2nd  ed.  396;  Taylor  **  Ante,  §58;  Onne 's  Case,  L.  R. 

V.    VaJe,    Cro.    El.    166    (1589);    1  8  C.  P.  281  (1872) ;  1  Gray 's  Cases 

Gray's  Cases  on  Prop.,  2nd  ed.  385;  on  Prop.,  1st  ed.  524. 

Co.  Lit.  309a,  b;  1  Gray's  Cases  on  <■>  Heelis  v.  Blain,  18  C.  B.  X.  S. 

55 


§  67]     INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY   [CH.  II 

(2)  Another  use  which  the  statute  would  not  execute  has  al- 
ready been  referred  to.  Since  the  statute  operated  only  when 
one  person  was  seized  to  the  use  of  another,  it  followed  that 
whenever  the  person  holding  an  estate  to  the  use  of  another  had 
less  than  a  freehold  estate,  for  instance,  a  term  for  years,  and 
was  holding  that  for  the  use  of  another,  the  use  was  not  executed 
by  the  statute.'**'  Although,  however,  there  was  no  actual  seisin 
in  a  reversioner  or  vested  remainderman  after  an  estate  of  free- 
hold, yet  such  a  reversioner  or  remainderman  could  limit  the 
future  interest  to  uses  which  the  statute  would  execute.^''  But 
a  contingent  remainderman  clearly  could  not  do  so  because  he 
had  no  alienable  interest. 

(3)  The  statute  would  not  execute  a  use  on  a  use.  That  is  to 
say,  if  there  were  a  feoffment  to  A  and  his  heirs  to  the  use  of 
B  and  his  heirs  to  the  use  of  C  and  his  heirs,  the  statute  would 
execute  the  first  use  to  B  and  his  heirs,  but  not  the  second.'*^ 
The  legal  estate,  therefore,  would  be  in  B.  Suppose  A  bargains 
and  sells  Blackacre  to  B  and  his  heirs,  to  the  use  of  C  and  his 
heirs.  Who  have  what  legal  estates?  The  bargain  and  sale  is 
in  fact  a  declaration  by  A  that  he  stands  seized  to  the  use  of 
the  bargainee.  A,  therefore,  stands  seized,  for  a  valuable  con- 
sideration, to  the  use  of  B  and  his  heirs,  to  the  use  of  C  and 
his  heirs.  The  first  use  is  in  B  and  the  second  use  is  in  C,  and 
the  statute,  therefore,  executes  only  the  use  in  B,  and  B  has 
the  legal  estate.^^ 

Suppose  a  feoffment  or  release  to  A  and  his  heirs  to  the  use  of 
A  and  his  heirs  to  the  use  of  B  and  his  heirs.  Is  the  use  of  B 
and  his  heirs  the  first  use  or  the  second  use?  It  is  submitted 
that  it  might  have  been  held  that  since  A  was  in  by  the  common 
law,  and  not  by  the  Statute  of  Uses,  the  use  to  B  was  the  first 
use.  'It  was  settled,  however,  that  B's  use  was  the  second  use.^^ 

90     (1864);     1     Gray's     Cases     on  Ab.  220,  pi.  2,  383,  note;   1  Gray's 

Prop.,  2nd  ed.  404.  Cases  on  Prop.,  2nd  ed.  411. 

id  Ante,    §53;    Symson   and    Tur-  49Tyrrel's    Case,    Dyer,    Pt.    II, 

ner,  1  Eq.  Cas.  Ab.  220,  pi.  1,  383,  155a    (1557);    1    Gray's    Cases    on 

note;  1  Gray's  Cases  on  Prop.,  2nd  Prop.,  2nd  ed.  410. 

ed.    411;     Bacon    on    Uses,    42;     1  so  Doe  v.  Passingham,   6  B.  &'C. 

Gray's  Cases  on  Prop.,  2nd  ed.  411,  305;   1  Gray's  Cases  on  Prop.,  2nd 

note  2.                                                  .  ed.  412;  Watkins  v.  Specht,  7  Coldw. 

*T  Ayite,  §53.  (Tenn.)   585. 

48  Symson  and  Turner,  1  Eq.  Cas. 

56 


Cii.  II] 


STATUTE   OF    USES 


[§67 


The  use  on  a  use  must  be  distinguislied  from  a  use  after  a  use. 
Thus,  where  A  stands  seized  or  is  enfeoffed  to  the  use  of  B  for 
life  to  the  use  of  C  in  fee,  C's  use  is  a  use  after  a  use,  and  not 
a  use  on  a  use.  So  where  A  is  enfeoffed  or  stands  seized  to  the 
use  of  B  in  fee,  but  if  B  dies  without  issue  him  surviving  to  C 
in  fee,  C's  interest  is  a  valid  future  interest. -'^  (''s  interest 
is  not  a  use  on  a  use,  but  a  use  after  a  use.  In  other  words,  A 
stands  seized  of  a  use  for  B,  and  then  for  ('.  A  does  not  stand 
seized  to  the  use  of  B,  who  is  then  to  stand  seized  to  the  use  of  C. 

(4)  If  there  were  any  active  duties  put  upon  the  person 
standing  seized  to  the  use  of  another  the  statute  would  not 
execute  the  use.  Thus  if  a  feoff mcni  were  made  to  A  and  his 
heirs,  to  receive  and  pay  over  the  rents  and  profits  to  B  and 
his  heirs,  the  statute  would  not  execute  the  use  in  B  because 
of  the  intention  expressed  that  A  was  to  continue  in  the  seisin 
and  legal  estate  for  the  purpose  of  receiving  and  disbursing 
the  rents  and  profits.^^  jf^  however,  the  feoffment  is  to  A  and 
his  heirs  with  a  direction  that  B  shall  take  the  rents  and  profits, 
this  makes  a  use  in  B  which  the  statute  will  exccute.^^  Modern 
eases  frequently  have  to  deal  with  the  distinction  between  trusts 
without  active  duties  which  are  uses  executed  by  the  statute, 
and  trusts  Avith  active  duties  which  remain  trusts.'"'^ 


51  Fost,.  §  72. 

52  Note  (1544),  Bro.  Ab.  Feoff. 
al  Uses,  52;  1  Gray's  Cases  on 
Prop.,  2nd  ed.  410;  Symson  and 
Turner,  1  Eq.  Cas.  Ab.  220,  pi.  1, 
383,  note;  1  Gray's  Cases  on  Prop., 
2nd  ed.  411.  But  compare  Appeal 
of  Rodrigue,  15  Atl.  680    (Pa.) 

53  Note  (1544)  Bro.  Ab.  PeofP. 
al  Uses,  52;  1  Gray's  Cases  on 
Prop.,  2nd  ed.  410.  Smith  v.  Smith, 
254  111.  488. 

54  See  cases  cited   post,   §  69. 

It  is  sometimes  difficult  to  tell 
whether  the  trustee  is  given  any 
active  duties  or  not.  For  instance, 
if  the  conveyance  is  to  A  and  his 
heirs  upon  trust  to  convey  to  B,  C 
and  D,  or  to  convey  to  B  and  the 
heirs  of  his  body,  the  context  may 
indicate  that  the  direction  to  "con- 


vey" is  used  merely  to  indicate 
the  use  or  beneficial  ownership.  In 
that  case  there  are  no  active  du- 
ties and  the  use  is  executed  by  the 
statute.  (See  Lynch  v.  Swayne, 
83  III.  336;  Uzzell  v.  Horn,  71  S. 
C.  426;  Adams  i-.  Guerard,  29  Ga. 
651.)  The  context  may,  however, 
show  that  in  the  direction  to  con- 
vey active  duties  were  clearly  pro- 
vided. This  is  80  where  the  spe- 
cial context  indicates  that  a  settle- 
ment is  to  be  made  by  the  trustee 
with  more  complete  and  detailed 
provisions  than  the  direction'  to  con- 
vey express.  Thus,  if  the  convey- 
ance is  to  A  and  his  heirs  upon 
trust  to  convey  to  B  for  life  and 
then  to  B's  heirs,  the  court  may 
very  properly  treat  this  as  an  ex- 
ecutory   trust    and    make    a    settlc- 


57 


§  68]  INTRODUCTION    TO   THE   LAW    OF    RE.VL   PROPERTY      [Ch.  TI 

(5)  It  has  already  been  suggested  that  where  a  feoffment  was 
made  to  A  and  his  heirs,  and  nothing  more  was  said,  but  B  paid 
the  consideration,  there  was  a  use  in  favor  of  B  before  the  Stat- 
ute of  Uses.  Did  the  Statute  of  Uses  execute  this  use  ?  The  mat- 
ter is  somewhat  obscure  and  perhaps  there  is  no  express  adjudi- 
cation upon  the  point,  but  the  fact  that  the  rights  of  B  were 
ultimately  enforced  in  equity,  as  a  trust  against  A,  leads  to  the 
conclusion  that  the  Statute  of  Uses  did  not  execute  the  use  raised 
in  favor  of  B.^^ 

§  68.  Status  of  uses  which  the  statute  did  not  execute : 
Professor  Ames  was  of  opinion  that  for  perhaps  a  century  after 
the  Statute  of  Uses  they  were  void,  or  at  least  unenforceable.^^ 
About  a  century  after  the  statute,  however,  the  uses  which  the 
statute  did  not  execute  came  to  be  enforced  by  the  chancery  in 
the  same  manner  in  which  uses  were  enforced  by  the  chancery 
before  the  statute.  In  short,  they  came  back  into  the  law  as  the 
modern  trust. 

§  69.  Whether  or  not  the  statute  executes  a  use  is  to  be  de- 
termined finally  at  the  time  the  use  is  created:  If  tlie  trans- 
feree to  uses  (apparently  taking  the  fee)  is  given  no  active  du- 
ties whatever  he  clearly  takes  the  fee  and  the  beneficial  inter- 
ests are  uses  executed  by  the  statute.  Thus,  where  the  convey- 
ance is  to  A  in  fee,  upon  trust  for  B  in  fee,  the  statute  executes 
the  use  and  B  and  his  heirs  have  the  fee  at  once.^'^  So  where  the 
conveyance  is  to  A  and  his  heirs  in  trust  for  B  for  life  and  then 
to  C  in  fee,  B  and  C  have  legal  estates — B  the  life  estate  and  C 
the  remainder  in  fee.^^ 

ment,  and  when  the  settlement  is  ton,  36  S.  C.  384.)  Another  con- 
made  under  the  direction  of  a  court  text  may  show  that  there  was  im- 
of  equity  it  will  be  so  molded  as  to  posed  upon  the  trustee  an  actual 
prevent  the  application  of  the  rule  active  duty  to  divide.  In  that  case 
in  Shelley's  Case.     Post,  §430.  the  statute  did  not  operate.     (Bowen 

If  the   transfer  is  to  A  and  his  r.  Humphreys,  24  S.  C.  452.) 

heirs   upon    trust    to    divide    among  55  See  ante,  §  56,  where  the  New 

B,    C  and   D,   the   context  may    in-  Hampshire  eases  contra  are  noted, 

dicate  that  ' '  divide ' '  is  used  merely  ^c  Ames '   Lectures  on  Legal   His- 

to    indicate    the    use    or    beneficial  tory,  243-247. 

ownership,  in  which  case  there  will  57  Witham  v.  Brooner,  63  111.  344. 

be  no  active  duties  and  the  use  will  ssQ'Melia   v.    MuUarky,    124   111. 

be  executed  by  the  statute.     (Drake  506;  Barclay  v.  Piatt,  170  111.  384; 

r.  Steele,  242  111.  301 ;  Moll  v.  Gard-  Drake  v.  Steel,  242  111.  301 ;  Smith 

ner,  214  111.   248;    Reeves  v.   Bray-  v.   Smith,   254  111.  488,  492;    Little 

58  • 


Ch.  II] 


STATUTE    OF    USES 


[§69 


If,  liowever,  active  duties  are  imposed  upon  the  trustee  and 
they  are  so  extensive  as  to  require  him  to  take  the  fee,"^"  then  no 
use  will  be  executed  by  the  statute.®^  If  the  active  duties  cease 
the  trustee  will  still  retain  the  legal  title  and  the  trusteeship 
must  be  closed  by  a  conveyance  from  the  trustee."*  It  cannot  be 
properly  said  that  the  use  is  executed  by  the  statute  when  the 
active  duties  of  the  trustee  cease."-  The  statute  executes  the  use, 
if  at  all,  only  at  the  time  the  use  is  created. 


V.  Bowman,  276  111.  125;  Newcomb 
V.  Masters,  287  111.  26. 

^^  Post,  U  183  et  seq. 

»oLeary  v.  Ki-rber,  25.3  111.  4.3.3; 
McFall  r.  Kirkpatrick,  236  111.  281 ; 
Burba.il  >:  Riirbaeh,  217  111.  547 
(seniblc);  Chicago  Term.  R.  R.  Co. 
V.  Winslow,  21 1)  III.  166,  175;  Binns 
V.  LaForge,  191  Til.  598  (scmblc); 
Lawrence  v.  Lawrence,  181  111.  248, 
251;  King  v.  King,  168  111.  27.3 
(semble) ;  Hart  v.  Seymour,  147  111. 
598;  Preacher's  Aid  Soc.  v.  Eng- 
land, 106  111.  125;  Kirkla,nd  v.  Cox, 
94  111.  400;  Meacham  v.  Steele,  93 
111.  135,  143,  146;  Ames  v.  Ames, 
15  R.  L  12;  Henson  v.  Wright,  88 
Tenn.  501. 

81  McFall  V.  Kirkpatrick,  236  111. 
281;   Kirkland   v.  Cox,  94  111.   400; 


111.  336;  Moll  v.  Gardner,  214  111. 
248;  Cary  v.  Slead,  220  111.  508,  512; 
Rcichert  v.  Mo.  &  111.  Coal  Co.,  231 
lU.  238. 

In  Kirkland  r.  Cox,  94  III.  400, 
413,  the  court  said:  "In  Harris  v. 
Cornell,  80  111.  67,  it  was  saiil,  re- 
ferring to  Hardin  r.  Osborn,  Sept. 
T.,  1875,  that  it  had  been  held  the 
purposes  of  a  trust  having  been  ac- 
complished, the  owner  of  the  trust 
became,  by  operation  of  law,  rein- 
vested with  the  legal  title  and  could 
sue  in  ejectment.  This  was  unad- 
visedly said.  A  rehearing  was 
granted  in  Hardin  v.  Osborn,  and 
the  opinion  therein  referred  to  was 
withdrawn.  In  McNab  v.  Young, 
81  111.  11,  language  of  like  import 
as   that   used   in    Harris   v.  Cornell, 


Vallette  v.  Bennett,  69  111.  632 ;  Doe  supra,  was  used  upon  the  authority 
V.  Edlin,  4  Ad.  &  El.  582;  Doe  v.  of  the  same  case,  although  it  is 
Field,  2  B.  &  Ad.  564;  Ayer  v.  Rit-       therein    erroneously    referred    to    as 


ter,  29  S.  C.  135;  Huckabee  v.  New- 
ton, 23  S.  C.  291 ;  Dakin  v.  Savage, 
172  Mass.  23,  26. 

It  has  been  said,  however,  that 
such  conveyances  might  be  pr'esumed 
from  lapse  of  time.  Kirkland  v. 
Cox,  94  111.  400,  413;  Uzzell  v.  Horn, 
71  S.  C.  426. 

«-  Expressions   to    the   contrary   ii\ 
"e  following  cases  must,  since  Mc- 
Fall  I'.  Kirkpatrick,  236  111.  281.  be 
regarded  as  overruled :  Harris  r.  Cor- 
nell, 80  111.  54,  67;  McNab  v.  Young, 


being  reported  in  60  111.  at  p.  93. ' ' 
In  Moll  V.  Gardner,  supra,  the  de 
cree  which  was  affirmed  directed  a 
conveyance  by  the  trustee  but  held 
the  interest  of  those  entitled  subject 
to  judgments.  This  might  go  on 
the  ground  that  the  judgments 
were  a  lien  on  a  bare  equitable  in- 
terest or  that  the  trustee  had  only 
an  estate  for  a  term  of  years  with 
n  legal  fee  in  the  ultimate  benefi- 
ciary. 

In  Cary  r.  Slead,  supra,  a  bill  was 


81  111.  11,  14;  Lynch  v.  Swayne,  83     filed  by  a  beneficiary  ultimately  en- 

59 


§  69]    INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY   [Ch.  II 

Suppose  that  the  trustee  is  given  some  active  duties  but  they 
are  so  far  limited  that,  under  the  rule  that  the  trustee  takes 
only  such  estate  as  his  active  duties  require,  he  has  only  an  estate 
for  years  or  for  the  life  of  the  life  tenant.®^  Under  these  cir- 
cumstances the  legal  estate  in  fee,  subject  to  the  term  or  the  life 
estate  as  the  case  may  be,  is  limited  to  the  beneficiary  by  direct 
words  of  grant  or  devise  and  not  at  all  because  the  statute  of 
uses  executes  a  use  when  the  active  duties  of  the  trustee  cease. 
The  statements  by  courts  in  such  cases  that  the  statute  executes 
the  use  when  the  active  duties  of  the  trustee  cease,^*  while  not 


titled  for  the  purpose  of  ending  the 
trust  and  securing  the  conveyance 
from  the  trustee.  A  decree  dismis- 
sing the  bill  upon  the  sustaining  of 
a  demurrer  was  reversed  because  the 
time  had  come  to  terminate  the 
trust.  The  remarks  of  the  court 
about  the  beneficiary  having  the 
legal  title  without  a  conveyance  were 
obiter,  inadvertent  and  apparently 
said  rather  by  way  of  emphasizing 
the  fact  that  the  trusts  were  ended. 

In  Eeichert  v.  Mo.  &  111.  Coal  Co., 
supra,  the  limitation  involved  was 
the  usual  one  providing  for  succes- 
sors in  trust  in  a  deed  of  trust.  It 
in  effect  provided  a  shifting  use  of 
the  legal  title  from  the  old  trustees 
to  the  new  trustees.  The  court  very 
properly  said  that  the  statute  of 
uses  executed  the  shifting  use  in  the 
successors  in  trust.   (Post,  §  444.) 

Where  a  debt  secured  by  mort- 
gage or  trust  deed  is  barred  by 
the  statute  of  limitations  the  legal 
fee  is  in  the  mortgagor.  This  has 
been  supported  on  the  ground  that 
the  mortgagee  had  a  determinable 
fee  which  came  to  an  end  when  the 
debt  was  barred.  (Post,  §  230.) 
The  results  obtained  in  this  line  of 
cases,  whether  right  or  wrong,  do 
not  lend  any  support  to  a  rule  that 
when  the  active  duties  of  the  trus- 
tee terminate  the  trustee 's  title  ter- 


minates and  a  use  is  executed  in  the 
beneficiary. 

In  the  following  cases  outside  of 
this  state  the  language  used  by  the 
courts  apparently  upholds  the  propo- 
sition that  when  the  trustee 's  ac- 
tive duties  cease  a  use  is  executed 
in  favor  of  the  beneficiary.  These, 
however,  are  cases  where  the  trustee 
had  active  duties  in  favor  of  a  life 
tenant  and  a  trust  "to  convey" 
after  the  death  of  the  life  tenant 
to  the  named  beneficiary.  It  is  diffi- 
cult to  tell  whether  the  legal  title 
vested  in  the  ultimate  beneficiary 
because  of  the  Statute  of  Uses  or 
because  the  trustee  had  only  such 
legal  estate  as  his  active  duties  re- 
quired and  that  his  active  duties 
only  required  an  estate  for  the  life 
of  the  life  tenant, — the  further 
trust  to  convey  being  construed  as  a 
mere  designation  of  the  beneficiary 
and  not  as  imposing  an  active  duty 
upon  the  trustee  to  make  any  con- 
veyance :  Bacon 's  Appeal,  57  Pa.  St. 
504;  Westcott  v.  Edmunds,  68  Pa. 
St.  34;  Chamberlain  v.  Maynes,  180 
Pa.  St.  39;  Welch  v.  Allen,  21  Wend. 
(N.  Y.)  147;  Watkins  v.  Eeynolds, 
123  N.  Y.  211. 

c-^Post,  §§  183  et  seq. 

«*See  Moll  v.  Gardner,  214  111. 
248. 


60 


Ch.  II]  STATUTE   OF    USES  [§70 

correct,  do  no  harm  so  far  as  the  result  is  concerned,  because 
the  same  result  would  be  reached  by  applying  the  rule  which 
limits  the  extent  of  the  estate  which  the  trustee  takes.  Since 
McFall  V.  Kirkpairick,^''  it  must  1)0  regarded  as  improper  in 
Illinois  to  assert  that  the  ultimate  legal  estate  in  fee  is  the  result 
of  the  operation  of  the  Statute  of  Uses. 

Topic  4. 
Estates  and  Limitations  by  Way  of  Use. 

§  70.  Estates  of  freehold  and  less  than  freehold  in  posses- 
sion: These  could  all  be  created  by  way  of  use.  Thus,  by 
limitations  to  uses  there  could  be  created  a  fee  simple,  a  fee 
tail,  a  life  estate,  a  term  for  years  or  at  will,  and  the  joint  estates 
recognized  by  the  feudal  law.  For  the  creation  of  a  fee  simple 
or  fee  tail  by  way  of  use  the  common  law  rule  which  required  the 
word  "heirs"  to  be  used,  prevailed.^^  The  use  must  be  to  A 
and  his  ' ' heirs ' '  or  to  A  and  the  ' '  heirs ' '  of  his  body.  If  "  heirs ' ' 
were  not  used,  a  life  estate  only  was  created  no  matter  how 
clearly  it  was  expressed  that  the  cestui  que  use  was  to  have  the 
fee  or  the  fee  tail. 

Under  the  feudal  system  of  land  law,  A  being  seized  in  fee 
could  not  cause  himself  to  be  seized  for  life  with  remainder  to 
another  unless  he  first  enfeoffed  a  third  person,  who  then  made 
livery  of  seizin  to  A  for  life  with  remainders  over.  Under  the 
Statute  of  Uses,  however,  it  was  possible  for  A  to  bargain  and 
sell  or  covenant  to  stand  seized  to  the  use  of  himself  for  life  with 
remainders  over,  and  the  statute  would  execute  all  the  uses  and 
confer  the  estates  named.  So  if  X  being  seized  in  fee  enfeoffed 
A  and  his  heirs,  to  the  use  of  X  and  Y,  or  to  the  use  of  X  for 
life,  with- remainder  to  Y,  or  to  the  use  of  A  for  life,  remainder 
to  the  use  of  A',  the  uses  were  all  properly  created  and  exe- 
cuted.«"  This  mode  of  conveying  was  of  practical  value  where 
one   trustee   wished   to   increase  the   number  of  trustees.     By 

05  236  111.  281.  1    Gray 's  Cases   on   Prop.,   2iul  ed. 

66 Per  Walmesley,  J.,  in  Corbet's  397;  Gilbert  on  Uses  (Sugden's  ed.) 

Case,    1    Co.    83b,    87b    (1600);    1  150-152,    note;    1    Gray's   Cases   on 

Gray's  Cases  on  Prop.,  2nd  ed.  402,  Prop.,  2nd  ed.  403-404,  note. 


6T  Sanders  on  Uses  (5th  ed.)  134; 


61 


§  71]     INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY   [Ch.  II 

lease  and  release  he  would  convey  to  A'  to  the  use  of  himself 
and  the  additional  trustees.''^ 

§  71.  Future  interests — Those  permitted  by  the  feudal  lajid 
law  could  be  created  by  way  of  use:  Reversions  by  way  of 
resulting  use  on  partial  use  were  created  as  already  described.*^^ 
Remainders  by  way  of  use  which  correspond  to  the  remainders 
which  the  feudal  law  held  valid,  and  which  are  properly  called 
vested  remainders,  because  they  stand  ready  throughout  their 
continuance  to  take  effect  in  possession,  whenever  and  however 
the  preceding  estate  of  freehold  determines,  so  that  no  gap' can 
possibly  occur,  are  valid.  Remainders  by  way  of  use,  cor- 
responding to  what  the  common  law  called  contingent  remain- 
ders, because  limited  upon  an  event  which  might  not  happen 
until  after  the  termination  of  a  particular  estate  of  freehold,  so 
that  the  fatal  gap  might  occur,  were  at  least  conditionally  valid 
as  under  the  feudal  land  law.'"  So  reversionary  interests,  and 
non-contingent  future  interests,  by  way  of  use  subject  to  terms 
for  years,  were  valid,  as  under  the  feudal  land  law. 

§  72.  Future  interests  not  permitted  by  the  feudal  land 
law  were  valid  when  created  by  way  of  use — (1)  Springing 
and  shifting  uses:  A  springing  future  interest  is  one  limited 
upon  an  event  which  makes  it  certain  that  a  gap  will  occur  be- 
tween the  future  interest  and  the  preceding  estate  of  freehold 
actually  limited,  or  which  is  limited  to  take  effect  in  fuhiro  with- 
out any  preceding  estate  expressly  created."  ^  Thus,  where  the 
limitations  are  to  A  for  life,  and  one  year  after  A's  death  to 
B  in  fee,  B's  is  a  springing  interest.  So  if  the  limitations  are 
to  B  in  fee  from  and  after  the  death  of  A  (who  has  no  estate  at 
all),  B's  is  a  springing  future  interest.  A  shifting  future  in- 
terest is  one  which  is  limited  upon  an  event  which  made  it  sure 
to  take  effect,  if  at  all,  by  cutting  short,  or  lapping  over  upon 
the  preceding  interest  expressly  created.'-  Thus,  where  the 
limitations  Avere  to  A  in  fee,  and  if  he  died  without  issue  him 
surviving,  then  to  B  in  fee,  B  had  a  shifting  future  interest. 

68  Sanders  on  Uses,  (oth  ed.)  134;  valid  and  released  i'lum  the  feudal 
1  Gray's  Cases  on  Prop.  2nd  ed.  397.  rule  of  destnictalnlity  is  considered, 

69  Ante,    §  58.      See    also    Leake,  post,    §  77. 
Digest  of   Land  Law,   112,   113;    1  -lAnte,  §26. 
Gray's  Cases  on  Prop.,  2nd  ed.  40o.  '-Id. 

TO  Whether  they  were  not   wholly 

62 


Ch.  IIJ  STATUTE    OF    USES  [§73 

Both  spi-iiiging  and  shifting  future  interests  were  wliolly  void 
by  the  feudal  law;'^^  but  both  came  to  be  entirely  valid  when 
created  by  way  of  use. 

Thus,  suppose  X,  being  seized  in  fee,  enfeoffed  A  and  his  heirs 
to  the  use  of  Y  for  life  and  one  year  after  Y's  death,  to  the  use 
of  B  and  his  heirs,  or  to  the  use  of  B  and  his  heirs  after  four 
years,  or  after  the  death  of  the  feoffor.  In  all  these  eases  li  had 
a  valid  springing  future  interest  by  way  of  use."-*  It  came  to  be 
called  a  springing  use.  In  the  same  way  X,  being  the  owner 
in  fee,  might,  by  bargain  and  sale,  or  covenant  to  stand  seized, 
declare  a  use  in  favor  of  A  for  life  and  one  year  after  A's  death 
to  B  and  his  heirs ;  or  to  B  and  his  heirs  after  four  years ;  or  to 
B  and  his  heirs  from  and  after  the  bargainor  or  covenantor's 
death."-'  It  has  been  said  that  a  bargain  and  sale  could  not  be 
made  to  a  person  not  in  esse,  because  there  was  no  one  in  being 
to  pay  the  consideration.  Professor  Gray,  however,  was  of  the 
opinion  that  a  bargain  and  sale  could  be  made  if  a  third  party 
paid  the  consideration,  as  well  as  where  the  bargainee  paid  it.  If 
that  be  so,  then  he  must  be  correct  in  his  conclusion  that  a  bar- 
gain and  sale  could  be  made  even  in  favor  of  a  person  not  in 
esse.'^  So  if  A'  being  seized  in  fee  enfeoffs  A  and  his  heirs,  to 
the  use  of  B  in  fee,  and  if  B  die  without  issue  him  surviving,  to 
C  in  fee,  C  has  a  valid  shifting  future  interest  by  way  of  use. 
It  is  properly  called  a  shifting  use.  In  the  same  way  X  may 
bargain  and  sell,  or  covenant  to  stand  seized,  to  the  use  of  B  in 
fee,  and  if  B  die  without  issue  him  surviving,  to  C  in  fee.  In 
that  case  also  C  has  a  valid  shifting  future  interest  by  way  of 
use."" 

§73.  (2)  Powers:  The  validity  of  estates  created  by  the 
exercise  of  a  power  of  appointment,  created  by  way  of  use,  nat- 
urally followed  from  the  ability  to  create  shifting  and  springing 
future  interests  by  way  of  use.  Estates  created  by  the  exercise 
of  a  power  of  appointment  were  in  fact  nothing  but  springing  or 
shifting  future  uses.  Thus  if  X  being  the  owner  in  fee  enfeoffed 
A  and  his  heirs,  to  such  uses  as  B  should  appoint,  and  B  subse- 

^3  Id.  'e  Gray 's  Rule  Against  Perpetui- 

7*  Leake,  Digest  of  Land  Law,  112,  tics,  §§61  et  seq. 

113;   1  Gray's  Cases  on  Prop..  2nd  ^ 7  Leake,    Digest    of    Land    Law, 

ed.  402,  40.'5.  112,  113;   1  Gray's  Cases  on  Prop., 

"/d.  2nd.  ed.  403. 

63 


§  74 j     INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY   [Ch.  II 

queutlv  appointed  the  fee  to  C,  C  in  fact  received  his  fee  as  if 
it  had  been  limited  as  part  of  the  original  conveyance  creating 
the  power.  C  takes  from  X  by  reason  of  X's  feoffment  to  uses, 
and  not  from  B,  the  person  appointing.  C  's  interest  is  a  perfect 
instance  of  a  springing  use.  The  use  might  be  to  B  and  his 
heirs,  with  power  in  B  to  appoint.  Upon  B's  appointment  to  C 
and  his  heirs,  B^s  fee  would  be  divested  in  favor  of  C  and  G's 
estate  would  be  a  shifting  future  use. 

Powers  may  also  be  created  by  way  of  bargain  and  sale,  or 
covenants  to  stand  seized.  It  should  be  observed,  however,  that 
the  appointee  must  come  within  the  consideration.  This  is  es- 
pecially important  in  a  covenant  to  stand  seized  where  the  ap- 
pointee must  be  a  blood  relative  of  the  creator  of  the  power. 
An  early  case  went  further  and  decided  that,  in  the  deed  creat- 
ing the  power,  the  power  must  be  in  terms  restricted  so  that 
appointment  can  only  be  made  to  blood  relations.'^^  But  this 
has  been  thought  to  be  a  doubtful  restriction  at  the  present  day. 
It  would  seem  that  it  ought  to  be  enough  that  the  appointment 
was  in  fact  to  a  blood  relative. 

§  74.  (3)  Limitations  to  classes  by  way  of  use:  Under 
the  feudal  system  of  land  law  if  A  made  livery  of  seisin  of 
Blackacre  to  B  and  his  children  "born  and  to  be  born,"  only 
the  children  of  B  in  esse  at  the  time  of  the  feoff meyit  would  take. 
If  the  after-born  child  had  been  allowed  to  take,  it  would  obvi- 
ously have  resulted  in  divesting  pro  tanto  the  seisin  already 
held,  and  would  in  effect  have  created  a  shifting  future  inter- 
est."^^  By  a  conveyance  to  uses,  however,  such  a  shifting  estate 
might  be  created.  If  a  use  were  raised  to  B  and  his  children 
"born  and  to  be  born,"  all  the  children  would  take  according 
to  the  expressed  intent.^*^ 

§  75.  Conveyance  creating  estates  will  take  effect  in  any 
way  possible:  It  is  now  clear  that  estates  and  future  interests 
which  are  void  or  impossible  when  created  by  a  feudal  mode  of 
conveyance,  may  be  valid  when  created  by  a  conveyance  operat- 
es Mildmay  's  Case,  1  Co.  175  so  Mellichamp  v.  Melliehamp,  28 
(1582);  6  Co.  40a  (1605);  1  Gray's  S.  C.  125  (1888);  Kales'  Cases  on 
Cases  on  Prop.,  2nd  ed.  398;  Kales'  Future  Interests,  236.  Contra,  Mil- 
Cases  on  Future  Interests,  1215,  ler  v.  McAlister,  197  111.  72  (1902)  ; 
notes.  Kales'  Cases  on  Future  Interests, 
■!^Ante,  §26.                                            239. 

64 


Ch.  II]  STATUTE   OF    USES  [§  76 

ing  under  the  Statute  of  Uses.  The  full  force  of  the  innovations 
introduced  under  the  KStatute  of  Uses,  both  as  to  the  mode  of  con- 
veyance and  the  interests  which  were  created,  would  have  been 
too  much  limited  if  there  had  been  any  technical  adherence  to  a 
particular  form  of  conveyance,  so  that  a  conveyance  would  be 
valid  or  effective  only  in  the  form  in  which  it  was  executed. 
The  rule,  therefore,  was  early  applied  that  a  conveyance  should 
take  effect  so  as  to  carry  out  the  intent  expressed  in  any  mode 
that  was  possible.  Thus,  if  an  instrument  purported  to  be  a 
common-law  grant  in  fuiuro  of  a  reversion,  it  was  ineff'ective  for 
that  purpose  as  a  conveyance  under  the  feudal  land  law,  and 
the  conveyance  itself  would  be  wholly  void  if  there  was  no 
attornment.  But  if  the  grant  recited  a  consideration  paid  and 
was  under  seal  and  enrolled,  then  it  might  take  effect  as  a  bar- 
gain and  sale,  which  requires  no  attornment  and  is  effective  to 
convey  a  freehold  to  begin  in  futuro.  If  there  were  no  enroll- 
ment but  the  grantee  happened  to  be  a  blood  relative  of  the 
grantor,  the  conveyance  was  effective  as  a  covenant  to  stand 
seized  because  neither  attornment  nor  enrollment  was  neces- 
sary.^^ 

$5  76.  Basis  for  the  new  freedom  in  creating  estates  and 
future  interests:  Such  was  the  new  freedom  in  the  creation 
of  estates,  and  more  particularly  future  interests,  which  arose 
under  the  Statute  of  Uses.  What  was  the  reason  for  this  utter 
disregard  of  the  principles  of  seizin,  without  which  the  feudal 
organization  could  not  be  maintained?  The  fact  is  the  feudal 
organization  of  society  as  a  reality  had  passed  away.  The  in- 
cidents of  tenure  had  become  obsolete,  or  of  less  and  less  im- 
portance. Feudal  England  was  becoming  commercial  England. 
Feudal  England  had  entered  upon  the  beginning  of  what  we 
may  call,  its  modern  history.  There  was  a  demand  for  liberty 
in  the  landowner  to  do  what  he  might  choose  with  his  own,  un- 
fettered with  tlie  burdens  of  tenure.  Because  judges  were  moved 
by  a  perception  of  the  desirability  of  this  new  liberty,  the  inno- 

81  Roe    V.    Tranmer,    2    Wils.    7'>  the  term  of  niiu'ty-niiu-  years,  witli- 

(1757);    1    Gray's   Cases   on    Prop.,  out    attornment    or   enrollment,   and 

2n(i    ed.    391.       See     also,    Edward  not  to  a  blood  relation,  but  upon  a 

Fox's   Case,    8    Co.    9:^b    (1610);    1  consideration   recited,  was  sustained 

Gray's  Cases  on  Prop.,  1st  ed.  489,  as  a  bargain   and   sale. 
where  tlie  grant  of  a  reversion  for 

Kales  Fut.  Int. — 5  g5 


§  77]     IXTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY   [Ch.  II 

vatious  achieved  under  the  Statute  of  Uses  -were  obtained.  But 
these  innovations  were  achieved  under  the  forms  of  law,  and  the 
Statute  of  I'sos  was  made  responsible  for  them.  No  doubt  spring- 
ing and  shifting  uses  were  known  before  the  Statute  of  Uses. 
For  instance,  before  the  Statute  of  Uses  one  seized  in  fee  might 
enfeoff  A  and  his  heirs,  to  such  uses  as  the  feoffor  might  appoint 
by  will,  and  then  the  feoffor,  by  his  will,  appoint  the  uses.^- 
This  was  a  clear  example  of  a  springing  future  use.  It  was  only 
natural  then  that  when  the  statute  turned  uses  into  legal  estates 
it  should  have  turned  springing  and  shifting  future  uses  into 
springing  and  shifting  legal  estates.  It  should  be  observed,  how- 
ever, that  the  new  freedom  in  creating  springing  and  shifting 
future  interests  by  way  of  use  was  not  achieved  immediately. 
It  was  not  until  almost  a  eenturj'  after  the  Statute  of  Uses  that 
the  complete  validity  and  indestructibility  of  the  springing  and 
shifting  future  interests  by  way  of  use  was  determined.'*''  That 
century  Avas  indeed  one  of  great  conflict  among  lawyers  and 
judges  as  to  whether  this  new  liberty  should  be  permitted,  and 
if  it  were  permitted  at  all,  to  what  extent.  The  reactionaries 
did  not  lose  every  point  in  the  contest.^^ 

^  77.  Contingent  remainders  by  way  of  use — The  rule  of 
destructibility  applies:  It  is  possible  that  before  the  time 
of  Henry  VIII.  the  rule  of  destructibility  of  contingent 
remainders  was  avoided  where  the  interests  were  limited  by  way 
of  use.  In  Sugden  on  Powers  ^^  it  is  said  that,  before  the  statute 
of  uses,  a  feoffment  to  the  use  of  A  for  years,  remainder  to  the 
right  heirs  of  J.  S.,  gave  valid  equitable  interests  to  A  and  to 
the  heirs  of  J.  S.  The  heirs  of  J.  8.,  therefore,  took  if  they  ever 
came  into  existence  at  all.  If  that  be  so  it  may  be  surmised  that, 
if  the  feoffment  were  to  the  use  of  A  for  life,  remainder  to  the 
riglit  heirs  of  J.  8.,  the  same  result  would  follow.  No  feudal 
principle  Avould  be  violated  in  either  case  for  the  seisin  was  in 
the  trustee  or  feoffee  to  uses  aU  the  time.^^ 

82  Pollock  on  Land  Laws,  91.  Uses),    a    feoffment    to    A    and    his 

8"  Gray 's    Rule    against    Perpetui-  heirs,  to  the  use  of  B  for  life  and, 

ties,  §§135-139;   142-147;   159.  after  B 's  death,  to  the  use  of  the 

s*  Post,  §§77,  80.  eldest   son   of   C    (a   bachelor)    and 

85  8th  ed.  34,  §  24.  his  heirs,  would  have  created  a  true 

8«  Mr.    Jenks    in    a   recent    article  contingent  remainder  in  favor  of  C's 

(Law    Quart.   Rev.    XX.    280,    285)  eldest  son." 

says:  "Thus  (before  the  Statute  of 

66 


Ch.  II]  STATUTE    OF    USES  [§77 

When,  after  tlie  Statute  of  Uses,  spi-iiiginj?  future  interests 
by  way  of  use  became  valid  and  indestructible  because  a  new 
freedom  in  the  creation  of  future  interests  was  thought  desir- 
able, there  was  no  reason  why  contingent  remainders  by  way  of 
use  sliould  continue  to  be  destructible  according  to  the  feudal 
rule.  The  law,  however,  did  not  work  out  these  a  priori  logical 
results.  Springing  and  shifting  uses  were  no  sooner  held  valid 
then  the  impression  seems  to  have  obtained  that  they  were  de- 
structible.^" The  analogy  between  their  destructibility  and  that 
of  contingent  remainders  at  common  law  must  have  been  en- 
tirely superficial  because,  at  eommon  law  the  contingent  re- 
mainder was  destroyed  by  the  termination  of  the  preceding  es- 
tate, so  that  the  future  interest  was  forever  prevented  from 
taking  effect  as  a  remainder.  An  interest,  therefore,  which  never 
could  take  effect  as  a  remainder  must,  if  it  were  valid  at  all,  have 
been  indestructible.  The  impression  that  the  future  shifting 
interest  might  be  destroyed  by  the  levying  of  a  fine  or  the  suf- 
fering of  a  recovery  by  the  one  seized  of  the  preceding  interest 
seems,  however,  to  have  prevailed  at  least  till  1599. ^^  It  was 
during  this  period  that  by  a  series  of  cases  decided  in  1592, 
1595  and  1598,  it  became  firmly  established  that  a  contingent 
remainder  by  way  of  use  continued  to  be  destructible,  as  under 
the  feudal  land  law.s!>  x\fterwards  springing  uses  were  held 
to  be  indestructible,!^"  but  the  holding  that  contingent  remainders 
by  way  of  use  Avere  destructible  continued  as  the  survival  of  a 
period  when  the  court  either  failed  to  perceive,  or  refused  to 
act  upon,  the  perception,  that  to  hold  springing  interests  valid 

8T  Gray's  Rule  against  Perpetui-  2  Roll.  Rep.  196  (1620) ,  held  a  shift- 
ties    §§142,  143.  i'lg  executory   devise  indestruftible: 

88  Gray's  Rule  against  Perpetui-  Gray's  Rule  against  Perpetuities, 
ties,   §§  144-147.  ?t  1-39.     In  Snowe   v.  Guttler,  1   Lev. 

89  Gray's  Rule  against  Perpetui-  135  (1664),  the  validity  of  a  spring- 
ties,  §141;  Chudleigh's  Case,  1  Co.  ing  executory  devise  of  our  seeond 
120a  (1595),  Kales'  Cases  on  Fu-  class  was  assumed  to  be  valid.  As 
ture  Interests,  82;  Archer's  Case,  1  it  was  also  suggested  that  it  would 
Co.  66b  (1597);  5  Gray's  Cases  on  be  subject  to  some  rule  against  re- 
Prop.,  2nd  ed.  42;  Kales'  Cases  on  moteness  it  probably  was  regarded 
Future  Interests,  98.  as      indestructible.        Gray 's      Rule 

»o  Pells  V.  Brown,   Cro.   Jac.   590,       against  Perpetuities,   §  165. 

67 


§  78]  INTRODUCTION    TO    THE   LAW    OF   REAL   PROPERTY     [CH.  II 

and  indestnu'tible  was  logically  to  hold  contingent  remainders 
valid  and  indestructible.^^ 

^78.  Trustees  to  preserve  contingent  remainders:  In  the 
hitter  half  of  the  seventeenth  century'-'-  the  English  convey- 
ancers invented  a  device  to  deprive  the  rule  of  destructibility 
of  any  general  practical  operation.  It  was  this:  After  the 
particular  estate  of  freehold  was  created,  a  remainder  was 
limited  to  trustees  to  hold  during  the  life  of  the  first  taker  upon 
trust,  for  the  first  taker  for  life,  and  to  preserve  contingent 
remainders.  Thus,  to  A  for  life,  remainder  to  B  and  C  and 
their  heirs  as  trustees  to  hold  during  the  life  of  A  upon  trust 
for  A  for  life  and  to  preserve  contingent  remainders,^^  ^ith 
remainder  to  A's  (unborn)  son  in  tail,  etc.  By  the  insertion 
of  this  estate  to  the  trustees,  who  held  during  the  life  of  A, 
the  fatal  gap  was  prevented  and  the  contingent  remainder  to 
A 's  unborn  son  could  not  be  destroyed  by  the  premature  termi- 
nation of  A's  life  estate  by  forfeiture  or  merger,  unless,  of 
course,  the  trustees  in  breach  of  their  trust  joined  with  A  in  a 
conveyance  which  would  terminate  the  life  estate  of  the  trustees 
as  well  as  that  of  A  before  the  contingent  remainder  vested. 
So  in  the  case  where  a  life  estate  is  limited  to  A,  with  remainder 
to  such  children  of  A  as  reach  twenty-one,  tlie  trustees  would 
take  during  the  life  of  A  and  until  A's  children  reached  twenty- 
one,  or  died  under  that  age,  in  trust  for  A  for  life,  and  then  in 
trust  for  the  children  of  A  until  they  reach  twenty-one,  and 
upon  trust  to  preserve  contingent  remainders.  This  prevents 
any  gap  occurring  between  the  termination  of  A's  life  estate 
and  the  time  when  the  children  should  all  reach  twenty-one. 
The  constant  use  of  the  estate  to  trustees  to  preserve  contingent 
remainders  in  England  resulted  in  the  doctrine  of  destructibility 
being  applicable  only  in  the  case  of  careless  conveyancing.  The 
feudal  rule  of  destructibility  thus  became  to  a  very  consider- 
able extent  harmless,  and  in  a  roundabout  way  the  object  was 
effected  which  would  have  been  reached  had  the  logical  result 

91  See  post,  §§96  et  seq.,  on  the  Jurid.   Soc.  Papers,  45,  53;    Kales' 
later  history  of  the  rule  of  destruct-  Cases  on  Future  Interests,  100. 
ibility  of  contingent  remainders.  93  Vaizey,     Law     of     Settlements, 

92  "Origin   of   the   Present   Mode  1161,  1162;  Kales'  Cases  on  Future 
of    Family    Settlements    of    Landed  Interests,  101. 

Property,"   by  Joshua  Williams,   1 

68 


Ch.  II]  STATUTE    OP    USES  [§  80 

of  allowing  springing  uses  been  applied  to  contingent  remainders 
by  way  of  use. 

The  question  was  raised  whether  the  remainder  to  the  trustees 
to  preserve  the  contingent  remainder  was  not  itself  a  contingent 
remainder  because  uncertain  ever  to  take  effect  unless  the  prior 
estate  terminated  prematurely  or  before  the  remainder  vested 
and  so  might  itself  be  destroyed.  Clearly  it  was  not  destruct- 
ible because  it  exactly  answered  the  feudal  description  of  a 
vested  remainder.  It  stood  ready,  throughout  its  continuance, 
to  take  effect  in  possession  whenever  and  however  the  preced- 
ing estate  determined.^-*  That  is  the  true  test.  If  it  is  ful- 
filled it  is  not  material  whether  the  future  interest  is  or  is  not 
uncertain  ever  to  take  effect  in  possession. 

§  79.  The  feudal  distinction  between  vested  and  contingent 
remainders  continued  to  be  important:  So  long  as  the  rule 
of  destructibility  of  contingent  remainders  continued,  the  feudal 
distinction  between  vested  and  contingent  remainders,  and  the 
distinction  between  contingent  remainders  and  indestructible 
springing  uses,  continued  to  be  important. 

§  80.  Contingent  future  interests  by  way  of  use  after  terms 
for  years:  Under  the  feudal  land  law  a  contingent  interest 
after  a  term  for  years  was  wholly  void.'-'^  The  reason  was  that 
no  one  would  be  actually  seized  of  the  freehold  during  the  term 
until  the  event  happened  upon  which  the  future  interest  was 
to  take  effect  in  possession.  Hence  the  case  was  actually  no 
different  from  the  one  where  the  freehold  was  limited  to  begin 
in  futiiro.  The  fatal  gap  in  the  scizi^i  was  bound  to  occur.  It 
followed  that  when  springing  future  interests  created  by  way 
of  use  were  allowed,  the  contingent  future  interest,  limited  by 
way  of  use,  after  the  term  would  be  valid.  On  the  other  hand, 
the  reactionary  decision  which  made  the  contingent  remainder 
after  a  particular  estate  of  freehold  still  destructible,  even  when 
created  by  way  of  use,  would,  if  pressed  to  its  logical  conclu- 
sion, require  the  contingent  interest  after  a  term  to  be  wholly 
void,  even  when  created  by  Avay  of  use.  It  is  an  interesting  fact 
that  so  far  as  the  decisions  in  England  go,  it  cannot  be  affirmed 
that  a  contingent  legal  interest  after  a  term  created  by  way 

»<  Smith  d.  Dormer  v.  Packhurst,       of  Real  Prop.,  2n(i  cd.  133;   Kales' 
3  Atk.  135   (1742);   5  Gray's  Cases       Cases  on  Future  Interests,  158. 
on   Prop.,   1st   ed.  55;    Challis,   Law  05  Ante,  §33. 

69 


§  81]  INTRODL  CTIOX    TO    THE   LAW    OF   REAL   PROPERTY     [Ch.  II 

of  use  is  valid.  Two  cases  decided  about  the  beginning  of  the 
eigliteenth  century  lield  such  an  interest  void.^^  No  doubt 
this  was  a  late  triumph  of  the  reactionaries  who  worshiped  the 
principles  of  the  feudal  land  law  and  were  bent  upon  resisting 
the  strange  innovations  introduced  by  holding  A^alid  springing 
and  shifting  interests.  Time,  however,  has  approved  and  ex- 
tended the  innovations  so  introduced.  Modern  ideas  and  habits 
of  thought  approve  the  freedom  in  creating  interests  in  lands 
which  was  wrought  out  by  means  of  the  Statutes  of  Uses  and 
"Wills.  The  decisions  of  the  early  eighteenth  century,  which 
refused  to  recognize  the  validity  of  a  contingent  future  interest 
after  a  term  by  way  of  use  may,  in  the  presence  of  modern 
judicial  wisdom,  be  assumed  to  be  ill-founded  and  not  the  law. 

Where  contingent  interests  after  terms  were  limited  by  deed 
an  estate  in  trustees  to  preserve  the  contingent  interest  was 
effectively  used.  Thus,  when  the  limitations  were  to  A  for  99 
years  if  he  shall  so  long  live,  then  to  trustees  and  tlieir  heirs 
during  the  life  of  A  upon  trust  for  A  and  to  preserve  the  con- 
tingent interests,  then  to  the  first  son  of  B  (unborn), ^^  the 
contingent  interest  of  the  unborn  son  was  valid. 

§81.  The  Rule  in  Shelley's  Case:  The  Rule  in  Shelley's 
Case  applied  to  remainders  created  by  way  of  use  in  the  same 
way  and  to  the  same  extent  as  it  applied  to  remainders  created 
at  the  common  law.  Shelley's  Case  ''^  was  decided  in  1581  with 
reference  to  limitations  created  by  way  of  use.  It  was  note- 
worthy as  continuing  the  application  of  the  feudal  rule  to  such 
limitations. 

In  1599  Archer 's  Case  ^^  emphasized  the  view  that  the  Rule 
applied  because  the  testator  or  settlor  intended  that  heirs  in 
the  plural  meant  primarily  the  indefinite  line  of  inheritable  suc- 
cession, and  that  in  order  to  give  effect  to  that  expressed  intent, 
the  ancestor  himself  must  take  the  fee  or  the  fee  tail  as  the 
case  might  be.     Therefore,  when,  as  in  Archer's  Case,  the  limi- 

96  Adams   v.   Savage,   2   Ld.   Eay.  oi  Smith  v.  Packhurst,  3  Atk.  135 

854,  2  Salk.  601-679;  5  Gray's  Cases  (1742);    5   Gray's   Cases   on  Prop., 

on  Prop.,  2nd  ed.  105;  Kales'  Cases  1st  ed.  55. 

on  Future  Interests,  246 ;  Kawley  v.  as  i  Co.  93b. 

Holland,    22    Vin.    Ab.    189,   2    Eq.  99  1  Co.   66b;    5  Gray's  Cases  on 

Cas.    Ab.    753.      Compare    eases    of  Prop.,  2nd  ed.  42;  Kales'  Cases  on 

contingent  interests  after  terms  for  Future  Interests,  98. 
years  created  by  devise,  post,   §  85. 

70 


Ch.  II]  STATUTE   OF    USES  [§  82 

tations  were  to  ''^  for  life,  remainder  to  his  next  iieir  male 
[in  the  singular  niimherj  and  to  the  heirs  male  of  the  body  of 
the  next  heir  male,"  it  Avas  held  that  the  two  circumstances 
of  the  use  of  "heir  male"  in  the  singular  number,  and  the 
superadded  words  of  limitation  rebutted  the  prima  facie  ex- 
pressed intent  that  the  indefinite  line  of  inheritable  succession 
was  meant,  and  the  Rule  in  Shelley's  Case  did  not  apply.  Much 
of  the  later  history  of  tiie  Rule  in  Shelley's  Case  consists  in 
determining  how  far  the  reasoning  upon  which  Archer's  Case 
went,  may  be  used  to  avoid  the  application  of  the  Rule.  Lord 
Mansfield  in  the  18th  century  attempted  to  make  the  question 
of  the  application  of  the  Rule  in  Shelley's  Case  turn  upon 
whether  "heirs"  (in  the  plural)  was  used  as  a  dcscripiio  per- 
sonae — i.  e.,  as  a  Avord  of  purchase — or  as  indicating  the  in- 
definite line  of  inheritable  succession — i.  e.,  as  a  word  of  limi- 
tation. He  held  that  superadded  words  of  limitation,  and  a 
direction  in  the  context  that  the  "heirs"  were  to  take  as  tenants 
in  common,  were  sufficient  to  indicate  that  "heirs"  was  used 
as  a  word  of  purchase  and  that  the  Rule  would  not  apply. ^ 
Early  in  the  19th  century,  the  House  of  Lords  -  put  an  end  to 
this  attempt  to  reduce  the  application  of  the  Rule.  Archer's 
Case  was  practically  limited  to  the  case  where  the  remainder 
was  to  the  "heir"  (in  the  singular  number)  of  the  life  tenant 
with  superadded  words  of  limitation.^ 

§  82.  Alienability  of  future  interests  created  by  way  of  use ; 
Under  the  feudal  law  the  only  future  interests  whicii  were 
alienable  were  reversions,  vested  remainders,  and  non-contingent 
interests  after  terms.  Possibilities  of  reverter,  rights  of  entry 
for  condition  broken  and  contingent  remainders  were  inalien- 
able. It  is  clear  that  the  same  interests  if  created  by  way  of 
use,  so  as  to  create  legal  interests  after  the  Statute  of  Tses, 
were  subject  to  the  same  rules  as  to  alienability.  Springing 
and  shifting  uses  were  inalienable.  This  continued  to  be  the 
law  in  England  till  1845,'*  and  still  prevails  in  many  states  of 

iDoe   V.    Laming,    2   Burr.    1100;  'See   post,    §§421   et   seq.,  where 

Crump   V.    Norwood,    7    Taunt.    362.  the    decisions   are   gone    into   exten- 

2  Jesson    r.    Wright,    2    Bligh,    1  sively. 
(1820);    5   Gray's   Cases*  on    Prop.,  •«  8  and  9  Vict.,  e.  106,  sec.  6. 

2nd  ed.  90;  Kales'  Cases  on  Future 
Interests,  262. 

71 


§  83]  INTRODUCTION    TO   THE   LAW   OF    REzVL   PROPERTY     [Ch.  II 

this  country.  Even  \erx  broad  statutes,  relating  to  lands  which 
may  be  taken  on  execution,  have  been  construed  not  to  permit 
the  levy  of  execution  on  contingent  remainders.^  The  fact 
that  vested  remainders  were  alienable  inter  vivos,  so  that  the 
legal  title  passed,  and  contingent  remainders  were  not,  has  kept 
alive  the  common-law  distinction  between  vested  and  contingent 
remainders. 

Topic  5. 

Summary  of  Changes  Wrought  by  Statute  op  Uses, 

§  83.  Summary:  The  Statute  of  Uses  was  passed  at  the 
instance  of  the  feudal  landowners  who  desired  to  perpetuate 
the  feudal  land  law.  By  the  astuteness  of  the  judges,  the  stat- 
ute not  only  did  not  have  that  effect,  but  it  was  used  as  the 
foundation  of  a  revolution  both  as  to  the  mode  of  conveying 
land  and  as  to  the  interests  in  land  which  might  be  created. 
One  of  the  objects  of  the  Statute  of  Uses  was  to  abolish  wills 
of  real  estate.  This  practically  failed,  for  in  1540,  four  years 
after  the  Statute  of  Uses  was  passed,  the  Statute  of  Wills  was 
enacted,  which  permitted  the  devise  of  two-thirds  of  a  knight's 
fee,  and  all  lands  held  in  socage.^  It  was  the  object  of  the  Stat- 
ute of  Uses  to  prevent  any  conveyance  which  would  not  have 
been  valid  under  the  feudal  land  law.  This  not  only  failed, 
but  the  Statute  of  Uses  was  at  once  used  as  a  means  for  origi- 
nating two  new  modes  of  conveying  the  legal  title,  utterly  un- 
known to  the  feudal  land  law — the  ''bargain  and  sale,"  and 
"the  covenant  to  stand  seized"  to  uses.  It  was  an  object  of 
the  Statute  of  Uses  to  unite  every  use  with  the  legal  estate  or 
seisin  so  that  no  use  could  exist  apart  from  the  legal  estate 
or  seisin.  It  may  be  that  for  a  century  the  statute  was  effec- 
tive in  doing  this,  but  by  the  end  of  that  time  the  uses  which 
the  statute  did  not  execute,  came  to  be  enforced  as  trusts  and 
have  ever  since  continued  to  be  so  enforced.  From  that  be- 
ginning, the  law  of  trusts  has  developed.  The  Statute  of  Uses 
attempted  to  destroy  the  secrecy  of  conveyance  by  requiring 
all  conveyances  to  be  made  as  at  common  law.  The  Statute  of 
Uses,  however,  necessarily  defeated  this  object  at  once  because 
a  parol  conveyance  based  upon  a  valuable  consideration,  how- 

5  Post,   §  320.  8  Post,  §  84. 

72 


Cn.  IT]  STATUTE   OF    USES  [§  83 

ever  slight,  was  sufficient  to  raise  a  use  which  the  statute  would 
execute,  and  the  legal  estate  would  then  vest  by  a  most  informal 
and  secret  conveyance.  To  prevent  this  the  Statute  of  Enroll- 
ments was  passed  in  the  same  year  with  the  Statute  of  Uses. 
This  required  bargains  and  sales  of  freeholds  to  be  signed,  sealed, 
indented,  and  enrolled.  Tliis  would  have  prevented  the  secrecy 
of  the  conveyance  by  bargain  and  sale  but  it  was  avoided  by 
the  lease  and  release.  The  Statute  of  Uses  established  a  form 
of  conveyance  by  lease  and  release  w^hich  was  not  only  secret 
but  could  be  effected  in  a  solicitor's  office  many  miles  from  the 
land  intended  to  be  conveyed.  The  fact  that  the  conveyance 
could  be  executed  in  a  solicitor's  office  was  revolutionary  to  a 
degree  that  should  not  be  overlooked.  Another  wholly  unex- 
pected result  of  the  Statute  of  Uses  was  the  making  springing 
and  shifting  future  interests  valid. 


73 


CHAPTER  III. 
WILLS  AND  TRUSTS  OF  LAND. 

TITLE   I. 
WILLS. 

§  84.  The  Statute  of  Wills :  Under  the  feudal  law  devises 
of  lands  held  on  most  of  the  tenures  were  not  permitted.^  As 
the  result  of  special  custom  ^  and  by  means  of  feoffments  to 
such  uses  as  the  feoffor  should  direct  by  his  will,  a  right  to 
devise  was  practically  obtained  before  the  Statute  of  Uses.^  The 
Statute  of  Uses,  by  turning  uses  into  legal  estates,  put  an  end 
to  this  practice,  but  such  was  the  demand  for  the  right  to  de- 
vise land  by  will  that  the  Statute  of  Wills  of  Henry  VIII.* 
was  passed.  It  allowed  the  devise  of  two-thirds  of  a  knight's 
fee,  that  is,  land  held  by  military  tenure,  and  all  lands  held  by 
socage  tenure.  When,  therefore,  by  the  Statute  of  Charles  11.,^ 
military  tenures  were  turned  into  common  socage  tenures,  all 
lands  became  fully  devisable.  The  Statute  of  Wills  of  Henry 
VIII.  required  only  that  the  Avill  be  in  writing.  The  Statute 
of  Frauds  of  Charles  II.  required  the  will  to  be  in  writing, 
signed,  and  attested  by  three  witnesses.  Statutes  in  this  coun- 
try' follow  the  lines  of  the  Statute  of  Frauds  requiring  signature 
and  attestation. 

§  85.  Limitation  of  estates  by  devise:  The  utmost  free- 
dom in  the  creation  of  estates  was  permitted  by  will.  All  the 
estates,  present  and  future,  which  could  l)e  created  under  the 
feudal  land  laic,  could  be  created  by  will.  The  feudal  rule 
which  required  the  word  "heirs"  to  be  used  when  a  fee,  or  fee 
tail,  was  to  be  created,  was  so  far  relaxed  that  any  formula 
of  words  which  expressed  the  testator's  intent  that  a  fee  or  fee 

^Aiite,  §41.  *32  Hen.  VIII,  ch.  1   (1540). 

2  Id.  5  Ante,  §  8. 

3  Digby,  History  of  Real  Proper- 
ty, 4th  ed.  37.5-377;  1  Gray's  Cases 
on  Prop.,  2nd  ed.  417. 

74 


Ch.  Ill]  WILLS    AND   TRUSTS  [^85 

tail,  be  eroateti  would  Ix'  t,MV('ii  cirec-t.  Unless,  however,  it  affirm- 
atively appeared  that  a  fee  or  fee  tail,  was  iiit.iulrd  to  be 
created,  a  life  estate  would  be  regarded  as  limited. 

All  future  iutei-es1s  which  were  void  by  the  feudal  law,  but 
which  were  valid  by  way  of  use,  were  etiually  valid  when  created 
by  will.  Thus  springing  and  shifting  future  interests  created 
by  will  were  valid.  They  were  called  executory  devises.  It 
was  not,  however,  until  the  ease  of  Pells  v.  Brawn''  in  1620, 
that  it  became  settled  that  the  executory  devise  was  not  destruct- 
ible by  the  first  taker  suffering  a  recovery,  or  in  any  other 
way.  It  was  this  case  which  established  the  complete  validity 
of  the  executory  devise,  and  of  all  springing  and  shifting  future 
interests  by  will,  and  inferentially,  all  springing  and  shifting 
future  interests  by  way  of  use.  Powers  of  appointment  created 
by  will  were  e(}ually  valid,  and  here  there  was  no  restriction  in 
any  ease  that  the  appointee  come  within  any  consideration  of 
blood,  as  in  the  case  of  a  power  created  by  way  of  covenant 
to  stand  seized.  So  gifts  to  a  class,  "born  and  to  be  born," 
were  valid,  and  would  be  carried  out  according  to  the  intent 
expressed."  A  decision  in  the  early  part  of  the  eighteenth 
century  made  it  clear  that  the  creation  by  devise  of  a  contingent 
interest  after  a  term  for  years  would  be  valid  as  a  springing 

executory  devise.^ 

The  rule  of  destructibility  of  contingent  remainders  was 
forced  upon  contingent  remainders  created  by  devise  '■"  just  as  it 
had  been  upon  contingent  remainders  created  by  way  of  use.^'* 
The  application  of  the  rules  of  destructibility  and  inalienability 
of  contingent  remainders  created  by  devise  and  the  indestruc- 
tibility of  springing  and  shifting  executory  devises  kept  alive 
the  feudal  distinction  between  vested  and  contingent  remainders 
and  between  contingent  remainders  and  executory  devises. 

The  Rule  in  Shelley's  Case  continued  to  apply  to  remainders 
created  by  will  in  the  same  way  and  to  the  same  extent  as  it 
did  to  remainders  created  under  the  feiulal  law. 

6Cro.  Jac.  590,  2  Roll.  Rep.  196;  143;    Kales'    Cases    on    Future    In- 

5  Gray's  Cases   on   Prop.,   2ud   ed.  terests,  247. 

140-  Kales'  Cases  on  Future  Inter-  » Archer's      Case,      1      Co.      66b 

ests    140  (1599);    5   Gray's  Cases  on  Prop., 

'Post    §474.  -"<i  ^^-  4-'  Kales'  Cases  on  Future 

8  Gore   V.    Gore,    2    P.   Wms.    28;  Interests,  98. 

5   Gray's   Cases  on   Prop.,   2ua   ed.  ^o  Ante,  §77. 

75 


§  86]  INTRODUCTION    TO    THE   LAW    OF   REAL   PROPERTY    [CH.  Ill 

The  rules  determining  what  future  interests  were  alienable 
and  what  were  not,  which  obtained  where  the  future  interest 
was  created  by  waj"  of  use/^  applied  in  the  same  way  where 
the  future  interest  was  created  by  way  of  devise.  Thus,  a 
vested  remainder  created  by  way  of  devise  was  alienable,  so 
that  title  passed  at  law,  while  the  contingent  remainder  created 
by  will,  and  executory  devises,  were  inalienable  at  law. 

§  86.  Devise  as  a  mode  of  alienation:  A  reversion  or 
vested  remainder  or  a  non-contingent  interest  after  a  term  was 
alienable  by  devise  without  attornment. ^^  Contingent  interests 
which  were  not  alienable  inter  vivos  were  alienable  by  devise, 
provided,  of  course,  the  death  of  the  devisee  was  not  such  an 
event  as  forever  made  it  impossible  for  the  future  interest  to 
take  effect — as  where  the  devisor's  interest  was  contingent  upon 
his  surviving  the  first  taker  and  he  died  before  him.^^ 

TITLE   II. 
TEUSTS. 

§  87.     Origin  and  reappearance  of  trusts  of  land :    The  use 

before  the  Statute  of  Uses  was  fundamentally  the  same  as  the 
modern  trust.  When  the  Statute  of  Uses  caused  the  trust,  or 
use,  to  become  a  legal  estate,  the  use,  as  a  trust  enforced  by  the 
court  of  chancery,  disappeared  for  the  time  being.  Professor 
Ames  believed,  as  a  result  of  his  historical  researches,  that  it 
did  not  reappear  until  about  a  century  after  the  Statute  of 
Uses.i^  Then  the  uses  which  the  Statute  did  not  execute  ^^ — 
principally  the  trust  with  active  duties,  and  the  use  on  a  use 
— came  again  to  be  enforced  by  the  court  of  chancery,  just  as 
the  use  had  been  enforced  by  the  same  court  before  the  Statute 
of  Uses.  This  was  the  beginning  of  the  modern  law  of  trusts. 
The  Statute  of  Frauds  of  Charles  11.^^  required  the  trust  to  be 
evidenced  by  a  writing  signed  by  the  person  to  be  charged  with 
the  trust. 

§  88.  Equitable  estates  in  land :  In  the  creation  of  equi- 
table estates  in  land  it  is  only  necessary  that  the  meaning  be 
made  clear  as  to  the  estate  intended  to  be  conferred.    An  equi- 

i^Ante,  §82.  i*  Ante,  §68. 

i^Ante,   §43.  ^^  Ante,   §  67. 

13  Post,  §  324-325.  le  Ch.  3,  §  7  (1676). 

76 


Ch.  IIlj  WILLS   AND   TRUSTS  f§  88 

table  fee  or  fee  tail  may,  therefore,  be  limited  without  the  use 
of  the  word  "heirs"  provided  some  words  be  used  which  affirma- 
tively indicate  the  creation  of  a  fee  or  fee  tail,  as  the  case  may 
be.^"^  Where  an  equitable  estate  in  laud  was  created  by  devise 
and  the  trustee  had  by  express  words  a  fee,  the  cestui  took  a 
fee  even  though  there  were  no  words  of  limitation  at  all.^** 

The  greatest  freedom  was  permitted  in  the  creation  of  equi- 
table future  interests  in  land.  Equitable  future  estates  cor- 
responding to  the  common  law  or  feudal  future  interests  were, 
of  course,  permitted.  Thus,  there  might  be  an  equitable  vested 
remainder,  an  equitable  reversion,  often  called  a  resulting  trust 
of  reversion,  and  efiuitable  contingent  interests  in  form  like  the 
common  law  contingent  remainder.  All  the  future  interests 
which  in  legal  estates  were  permitted  only  by  way  of  use  or 
devise,  were  allowed.  Thus,  all  springing  and  shifting  ^^  equi- 
table interests  were  valid.  Powers  over  equitable  interests  were 
valid.  Equitable  interests  in  classes  were  carried  out  as  limited. 
Equitable  contingent  interests  after  terms  were  unobjection- 
able.-" The  rule  of  destructibility  of  contingent  remainders  was 
inapplicable  to  equitable  interests  because  the  requirements  of 
the  feudal  land  law  were  satisfied  by  the  seisin  of  the  trustees. 
If,  therefore,  the  equitable  remainder  were  to  such  of  the  equi- 
table life  tenant's  children  as  attained  twenty-one  and  the  life 
tenant  died  leaving  children  under  twenty-one,  the  trustee  held 
the  fee  until  the  children  reached  twenty-one  and  thereupon 
conveyed  to  them  according  to  the  expressed  intent.- 1 

For  the  transfer  of  an  equitable  interest  in  land  already  cre- 
ated, no  formal  act  was  necessary.  Before  the  Statute  of  Frauds 
the  transfer  might  have  been  by  parol.  After  that  act  a  writ- 
ing was  required  signed  by  the  transferror.  For  the  transfer  of 
an  equitable  fee  by  an  equitable  tenant  in  tail,  equity  followed 
the  law  and  required  an  ecpiitable  recovery  under  the  circum- 
stances demanded  for  the  recovery  of  a  legal  fee  tail.22  When 
trusts  of  land  came  to  be  used  and  enforced  by  chancery  in  the 

17  Lewiii     on     Trusts,     124  (ed.           21  Astley   v.   Micklethwait,   15   Ch. 

1911)-  Div.  59   (1880);   5  Gray's  Cases  on 

^»Id.  125.  Prop.,  2nd  ed.  65;   Kales'  Cases  on 

19  7c?.  90;  post,  §472.  Future   Interests,   122. 

20  Leake,  Digest  of  Land  Law,  -"2  Lewin  on  Trusts,  891  (ed. 
471.  1911). 

77 


s$  S9j  IXTRODUCTIOX    TO    THE   LAW    OF    REAL   PROPERTY    [Ch.  Ill 

ITtli  and  IStli  eenturies,  the  view  that  all  couveyanees  of  con- 
tingent future  interests  were  in  their  nature  ehampertous  and 
contrary  to  public  policy  had  lost  its  force.  The  feudal  reason 
that  the  contingent  estate,  if  it  could  take  effect  at  all,  was  noth- 
ing until  it  vested,  was  wholly  eliminated  by  the  fact  that  the 
legal  seisin  was  outstanding  in  the  trustee.  It  followed  that  the 
feudal  rule  of  inalienability  of  legal  contingent  future  interests 
had  no  application  to  equitable  contingent  future  interests.-^ 

§  89.  The  Rule  in  Shelley's  Case  applied  to  equitable  inter- 
ests in  land:  The  Rule  in  Shelley's  Case  applied  to  equitable 
estates  in  land  just  as  under  the  feudal  law  it  applied  to  legal 
estates  or,  after  the  Statute  of  Uses,  it  applied  to  legal  estates 
created  by  way  of  use. 

Two  slight  qualifications  of  this  statement  may,  however,  be 
noted :  First,  if  the  life  estate  is  equitable  and  the  remainder 
is  legal,  or  vice  versa,  the  Rule  does  not  apply. ^-^  The  Rule  only 
applies  when  both  interests  are  equitable  or  both  legal.  Why 
was  this?  Perhaps  the  Rule  applied  when  both  interests  were 
equitable,  because  the  analogy  to  the  common-law  situation 
where  both  were  legal  was  perfect.  When  one  interest  was 
equitable  and  the  other  legal,  the  original  common-law  or  feudal 
situation  where  the  rule  applied,  was  not  present,  and  the  per- 
fect analogy  which  existed  where  both  were  equitable,  was  not 
present.  Second,  where  there  was  an  executory  trust  which 
required  the  trustee  to  settle  an  estate  upon  A  for  life,  and 
then  upon  the  heirs  of  A's  body,  equity  required  the  trustee  to  so 
make  the  settlement  that  the  Rule  in  Shelley's  Case  would  not 
apply.-"^  Thus,  if  the  remainder  were  to  be  settled  upon  the 
heirs  of  the  body  of  A,  the  settlement  must  be  made  in  the  usual 
form  of  a  strict  settlement  upon  A  for  life,  then  to  trustees  to 
preserve  contingent  remainders,  then  to  the  first  and  other  sons 
of  A  successively  in  tail,  etc.^^ 

23  Id.  889.     At  post,  §  374,  it  ap-  r-ontingent   interest   would   be   given 

pears   that   in   equity   an   attempted  effect    in    equity    when    the    eontin- 

transfer    of   a    legal    contingent   re-  gency  upon  which  it  was  limited  oc- 

mainder  might  be  given  effect  as  a  curred. 

contract  to  convey  when  the  remain-  24  Post,  §  41.3. 

der   vested   which  a  court  of  chan-  2s  Post,  §  430. 

eery    specifically    enforced.      A   for-  26  Ante,    §  18. 
tio7-i,  the  assignment  of  an  equitable 

78 


CH.  Ill]  WILLS    AM)    TItrSTS  f  §  80 

The  refusal  of  courts  of  equity  to  apply  the  Rule  in  JSlielley's 
Case  where  the  trusts  were  executory,  resulted  from  the  fact  that 
equity  at  first  started  to  exclude  the  application  of  the  Rule  to 
any  equitable  interests.  It  undertook  to  look  at  the  actual  mean- 
ing of  the  testator,  or  settlor,  in  all  cases.  It  was  prepared  to  take 
the  position  that  prinuirily  "heirs,"  or  "heirs  of  the  body,"  were 
used  as  words  of  i)urchase  to  designate  the  particular  indi- 
vidual or  individuals,  who  answered  that  description  at  the  life 
tenant's  death.  The  court  of  chancery  at  first  did  this  in  the 
case  of  executory  trusts,  but  Lord  Hardwicke  took  the  same  posi- 
tion where  there  was  no  executory  trust  but  the  interests  were 
merely  equitable.-"  But  this  last  position  was  overruled  and  the 
law  finally  crystallized  so  that  the  courts  of  equity  drew  a  dis- 
tinction between  the  case  where  the  trusts  were  executory,  and 
Avhere  the  interests  were  merely  equitable,  and  the  trust  was  not 
executory. 


2T  Bagshaw  v.  Spencer,  1  Ves,  Sr. 
142. 


79 


CHAPTER  IV. 

THE  LATER  HISTORY  OF  REVERSIONS,  REMAINDERS, 

AND  THE  RULE  OF  DESTRUCTIBILITY  OF 

CONTINGENT  REMAINDERS. 

TITLE   I. 
EEVERSIONS. 

^  90.  Vested  and  indefeasible :  The  earliest  and  simplest, 
case  of  a  reversion  ocenrred  where  a  particular  estate  of  free- 
hold was  created  in  A  and  no  further  estate  was  limited.  A  re- 
version by  operation  of  law  was  thereupon  left  in  the  feoffor  or 
the  g:rantor.  The  reversion  was  indefeasible.  It  had  this  essen- 
tial characteristic.  It  stood  ready  at  all  times  to  take  effect  in 
possession  whenever  and  however  the  preceding  estate  of  free- 
hold might  determine,  so  that  there  could  be  no  gap  in  the  seisin 
between  the  termination  of  the  particular  estate  and  the  taking 
effect  in  possession  of  the  reversion.^ 

§  91.  Vested,  but  uncertain  ever  to  take  effect  in  possession 
and  defeasible — e.  g.,  a  reversion  pending  the  vesting  of  a 
contingent  remainder:  So  long  as  contingent  remainders  w^ere 
wholly  void  the  reversion  was  vested  and  indefeasible  as  in  the 
case  put  in  the  preceding  section.  The  moment,  however,  the 
contingent  remainder  was  held  to  be  valid  upon  the  condition 
that  it  must  vest  before  the  preceding  estate  determined,  the 
reversion  became  at  once  defeasible  and  uncertain  ever  to  take 
effect  in  possession.  This  w^as  conspicuously  so  when  contingent 
remainders  in  double  aspect  occurred  as  where,  after  a  life 
estate,  remainders  were  limited  to  the  issue  of  the  life  tenant 
if  he  had  any,  and  if  not,  to  B  and  his  heirs.^  If  the  reversion 
were  now  regarded  as  vested,  then  when  the  contingent  re- 
mainder vested  it  would  do  so  by  way  of  cutting  short  a  prior 

1  Ante,  §24.  2nd  ed.  49;  Kales'  Cases  on  Future 

2  Loddington  v.  Kime,  1  Salk.  224       Interests,  107. 
(1695);    5   Gray's  Cases   on   Prop., 

80 


Ch.  IVj     REVERSION'S    AND    RKMAINDKRS — LATER    HISTORY  [§92 

vested  iiitei-est  in  i"ee.  in  order  to  avoid  this  iiil'raetioii  of  the 
feudal  theory  of  estates  it  was  perhaps  urged  that  the  rever- 
sion remained  in  nuhibus  and  took  effect  by  operation  of  law 
in  the  reversioner  when  the  contingent  remainder  failed.  Such 
a  view  was  consistent  with  the  fact  that  the  reversion  itself  was 
not  destructible.  By  its  very  terms  it  stood  ready  throughout 
its  continuance  to  take  effect  in  possession  whenever  and  how- 
ever the  preceding  estate  detoi-mined.  After  the  Statutes  of 
Uses  and  Wills,  wlien  a  fee  on  a  fee  was  unobjectionable,  the 
view  obtained  that  the  reversioner  had  a  vested  fee  which  was 
cut  siiort  by  the  vesting  of  a  contingent  remainder.  As  a  mat- 
ter of  fact,  this  was  not  a  serious  inroad  upon  the  feudal  theory 
of  estates  because  there  could  not  be  any  shifting  of  the  pos- 
session from  the  reversioner  to  the  contingent  remainderman. 
All  shifting  occurred  while  the  reversioner  was  still  out  of  pos- 
session and  witliout  any  actual  seizin.  At  all  events,  time  has 
settled  it  tluit  the  reversioner  has  a  vested  interest  which  is 
alienable  inter  vivos  and  indestructible  by  any  rule  of  law  de- 
feating intent,  tliough  the  reversion  may  be  uncertain  ever  to 
come  into  possession  and  is  subject  to  be  defeated  by  the  vest- 
ing of  a  contingent  remainder  wliile  the  reversioner  remains  out 
of  possession. ■5  Upon  a  conveyance  by  the  reversioner  to  the 
life  tenant  or  vice  versa,  the  life  estate  merged  in  the  reversion 
and  was  extinguished.* 

5$  92.  Vested,  but  subject  to  be  defeated  by  events  happen- 
ing aiter  the  reversion  came  into  possession:  Tlic  moment 
the  rule  of  destruclilnlity  of  contingent  renuiinders  is  removed 
the  reversioner  nuiy  come  into  possession  after  tlie  termination 
of  the  life  estate  and  thereafter  his  estate  may  be  divested  by 
the  happening  of  the  contingency  upon  which  the  contingent 
remainder  is  to  take  effect.  Tliis  was  entirely  contrary  to  feudal 
principles,  but  it  was  precisely  what  happened  Avhen  springing 
future  interests  were  valid  by  way  of  use  or  devise.  It  is  a 
necessary  consequence  of  the  turning  of  a  contingent  remainder 
into  a  future  interest  which  may  take  effect  according  to  the 
intent  of  the  parties  even  though  it  must  do  so  as  a  springing 
executory  interest. 

3  Williams  on  Real  Prorerty,  21st  Saund.  .380  (1670);  Kales'  Cases  on 
ed.   359.  Future   Interests,   101. 

*  Purefoy     i'.     Rogers,     2     Wnis. 

Kales  Fut.  Int. — 6  gl 


§  93]  INTRODUCTION    TO   THE   LAW   OF    REAL   PROPERTY     [CH.  IV 

TITLE    II. 
REMAINDEES. 

§  93.  Vested  and  indefeasible :  These  differ  from  the 
vested  and  indefeasible  reversions  only  in  being  limited  by  the 
act  of  the  parties  in  the  same  instrnment  which  created  the 
particular  estate.  Thus,  where  the  limitations  are  to  A  for  life 
with  a  remainder  to  B  and  his  heirs,  the  remainder  to  B  has  the 
same  characteristics  as  the  vested  and  indefeasible  reversion. 
It  stands  ready  to  take  effect  whenever  and  however  the  pre- 
ceding estate  determines  and  is  certain  to  take  effect  some  time. 
Under  the  feudal  land  law  there  could  be  no  other  kind  of  a 
vested  remainder,  for  the  executory  future  interest,  which  might 
operate  to  divest  a  vested  remainder,  was  invalid. 

§  94.  Defeasible  and  uncertain  ever  to  take  effect  in  pos- 
session: When,  under  the  Statutes  of  Uses  and  Wills,  shifting 
future  interests  came  to  be  valid  and  indestructible,  it  was 
possible,  after  limiting  a  remainder  in  fee  upon  a  life  estate, 
to  provide  that  if  the  remainderman  did  not  survive  the  life 
tenant,  or  if  he  died  without  leaving  issue,  the  fee  should  go 
over  to  C.  This  at  once  made  the  remainder  uncertain  ever  to 
take  eft'ect  in  possession  because  it  was  subject  to  be  divested. 
The  remainder,  however,  still  retained  its  essential  character- 
istic of  standing  ready  throughout  its  continuance,  to  take  effect 
in  possession  whenever  and  however  the  preceding  estate  de- 
termined. Hence,  the  remainder  was,  as  it  had  been  before, 
vested,  alienable  inter  vivos  and  indestructible  by  any  rule  of 
law  defeating  intent. •'• 

§  95.  The  problem  of  Egerton  v.  Massey:  ^  The  limitations 
in  this  case  were  by  devise  in  substance  to  A  for  life,  remainder 
to  the  children  of  A  living  at  A's  death  and  in  default  of  such, 
to  B  in  fee.  Then  there  was  a  devise  of  the  residue  to  A  in  fee. 
It  is  clear  that  the  ultimate  gift  to  A  has  (leaving  out  of  con- 
sideration for  a  moment  its  mode  of  creation)  all  the  character- 
istics of  a  vested  remainder  and  a  vested  reversion.     It  stands 

5  Post,  §§327,  328.  Benson  v.  Tanner,  276  111.  594,  and 

6  3   C.    B.   N.    S.    338    (1857);    5  in  Freedman  v.  Freedman,  283  111. 
Gray's  Cases  on  Prop.,  2nd  ed.  63;  383,  but  was  unnoticed  by  the  court. 
Kales'    Cases    on   Future    Interests,  which    reached    a    result    similar    to 
111.     The   same   problem    was   pre-  that  in  Egerton  v.  Massey. 
sented    to    our    Supreme    Court    in 

82 


Ch.  IV]     REVERSIONS    AND    REMAINDERS^LATER    HISTORY  [{^95 

ready  tlii-ougliout  ils  coiitimiaiice,  to  take  effect,  if  at  all,  when- 
ever and  however  the  life  estate  in  A  may  determine.     It  tills 
in  as  an  abstraction,  the  time  between  any  termination  of  A's 
life  estate  and  the  takinj,'  etVect  of  the  (•ontin<,'ent   interests  ex- 
pressly limited.     It  is  not  destiucti!)h'  beeanse  there  is  no  pos- 
sibility of  a  ji^ap  occnrring  between  the  termination  of  the  life 
estate  and  the  taking  ett'ect    in   i)ossession  of  A's  interest  as 
residuary  devisee.    It  is  alienable  •  and  the  transfer  of  A's  life 
estate  and  ^'.s-  intei-est  in  fee  by  the  residuary  clause  in  a  third 
person  will  terminate  the  life  estate  by  merger.«     The  future 
interest  in  A   by  tlie  residuary  clause  is  only  divested  by  the 
vesting  of  one  or  the  other  of  the  contingent  future  interests 
expressly  limited.    It  must,  indeed,  be  either  a  vested  remainder 
or  a  vested  reversion  intervening  before  the  contingent  future 
interests,  and  defeated  only  by  being  divested  by  the  taking 
effect  of  one  or  the  other.    A  having  transferred  her  life  estate 
and  her  fee  to  a  third  party  the  life  estate  terminated  by  merger 
and  the  question  arose  whether  the  contingent  gifts  over  were 
thereby  destroyed.     The  court  held  that  they  were.     It  appa- 
rently accepted  the  view  tliat  if  the  fee  in  A  was  a  remainder 
then  the  contingent  future  interests  were  executory  devises  and 
indestructible.     The  court,  therefore,  makes  the  result  that  the 
contingent  future  interests  were  destroyed  turn  on  the  fact  that 
A  had  a  reversion  and  not  a  remainder. 

Professor  Gray  justities  tliis  for  the  court  by  suggesting  that  ■* 
"although  in  a  will  the  residuary  gift  is  contained  in  the  same 
instrument  as  the  particular  devise,  yet  the  effect  of  the  whole 
is  to  be  regarded  as  the  establishment  of  a  particular  estate 
with  a  reversion,  and  an  independent  transfer  of  that  reversion, 
so  established,  to  the  residuary  devisee."  His  position,  however, 
requires  a  most  extraordinary  mental  effort.  We  must  suppose 
that  the  testator  dies  at  one  time,  so  far  as  the  commencement 
of  the  will  is  concerned,  and  a  little  later  with  respect  to  the 
subsequent  clause.     Or  else  we  must  suppose  that  the  will  took 

7Caraher   r.   Lloyd,   2   Com.   Rep.  Coggeshall,  74  S.   C.  42,  where  the 

(Australia)  480;  Benson  r.  Tanner,  residuary    devisee    was    assumed    to 

supra.  ^'^^e  a  vested  interest,  but  a  merger 

8  It  is  so  held  in  Egorton  v.  Mas-  was  held  not  to  have  occurred, 

sey,  »upra,  and  Benson    v.   Tanner,  » Rule        against        Perpetuities, 

sxipra.      See,   however,   McCreary    v.  §  113a. 

83 


§  96]  INTRODUCTION    TO    THE  LAW   OF    REAL   PROPERTY    [Ch.  IV 

effect  ill  sections,  Avitli  momentary  lapses  of  time  between  each 
and  that  there  was  a  moment  of  time  in  which  the  heir  at  law 
had  a  reversion  by  descent  and  then  {mirahile  dictu!)  the  later 
clanse  of  the  ^yill  operated  as  an  assignment  by  the  testator 
(sic)  of  the  reversion  which  has  already  vested  in  the  testator's 
heir.  The  plain  facts  are  that  the  same  instrument  which 
creates  the  life  estate  and  contingent  interests  expressly  limits 
the  vested  future  interest  by  the  residuary  clause  and  all  of 
them  take  effect  at  once  upon  tlie  testator's  death.  It  is  per- 
fectly proper  that  the  case  should  be  supported  as  far  as  it 
holds  that  the  future  interest  limited  to  A  by  the  residuary 
clause  w^as  vested  and  preceded  in  order  the  contingent  interests, 
but  it  is  submitted  that  the  future  interests  created  by  the 
residuary  clause  w^ere  as  plainly  limited  by  the  act  of  the  de- 
visor and  at  the  same  time  as  the  other  interests  as  if  the 
testator  had  expressly  devised  to  A  for  life,  remainder  to  A 
in  fee,  provided,  however-,  that  if  A  left  children  surviving  her 
those  children  should  take,  and  if  A  did  not,  then  to  B  in  fee. 
In  such  a  case  surely  no  one  would  contend  for  the  fiction  that 
A's  remainder  was  the  assignment  of  a  reversion.  The  fact 
that  A's  interest  is  limited  by  a  subsequent  residuary  clause  in 
the  will  does  not  in  substance  altar  the  situation.  The  future 
interest  limited  to  A  by  the  residuary  clause  is  a  remainder. 
If  the  court  called  it  a  reversion  that  must  be  regarded  as  an 
unnecessary  extension  of  the  rule  of  destruetability  of  contingent 
remainders. 

TITLE  III. 

THE   RULE   OF   DESTRUCTIBILITY   OF   CONTINGENT 
REMAINDERS. 

§  96.  Conting-ent  remainders  defined :  A  contingent  re- 
maindei-  is  a  legal  future  interest  after  a  particular  estate  of 
freehold  limited  upon  an  event  (precedent  in  fact  and  in  form 
to  its  taking  effect  in  possession)  which  may  happen  before  or 
after,  or  at  the  time  of  or  after,  the  termination  of  the  preceding 
estate  of  freehold. ^^^  This  group  of  remainders  is  not  described 
for  the  mere  pleasure  of  abstruse  classification  but  because  cer- 
tain important  legal  attributes  attach  to  remainders  of  this  class. 

if'Ante,   §§27,   79;    post,   §  I'.O!). 

84 


Ch.  IV]     REVERSIONS   AND   REMAINDERS — LATER   HISTORY  [§97 

P'rom  the  time  of  the  feudal  land  law  to  the  present  day  they 
have  been  inalienable  inter  vivos  while  they  remained  contingent. 
Prior  to  1430  they  were  wholly  void.  After  that  they  became 
valid  if  the  event  upon  which  they  were  limited  happened  before 
or  at  the  time  of  the  termination  (whenever  and  however  that 
might  occur)  of  the  preceding  estate  of  freehold.  This  was  later 
translated  into  the  rule  that  the  contingent  remainder  was  de- 
stroyed unless  the  event  upon  which  it  was  limited  happened 
before  or  at  the  time  of  the  termination  of  the  preceding  estate  of 
freehold.  This  became  the  rule  of  destructibility  of  contijigent 
remainders.  Then,  illogically  enough,  after  springing  and  shift- 
ing future  interests  by  way  of  use  or  devise  became  valid  and 
indestructible,  contingent  remainders  still  continued  to  be  de- 
structible by  a  rule  of  law  defeating  intent  even  when  the  con- 
tingent remainder  was  created  by  way  of  use  or  devise. ^^  The 
characteristics  of  inalienability  and  destructibility"  (together,  no 
doubt,  with  others)  have  required  the  drawing  of  a  line  between 
contingent  remainders — which  are  inalienable  and  destructible, 
— and  vested  remainders — which  are  alienable  and  indestruct- 
ible. Because  shifting  and  springing  executory  interests  were 
held  to  be  indestructible  it  is  also  necessary  to  draw  a  line  be- 
tween them  and  contingent  remainders. 

§  97.  The  continuation  of  tlie  rule  of  destructibility  of  con- 
tingent remainders  after  springing  and  shifting  future  inter- 
ests became  valid  and  indestructible:  It  became  settled  in 
Chudleigh's  Case  ^^  and  Archer's  Case,^^  at  the  end  of  the 
sixteenth  century,  that  the  rule  of  destructibility  would  apply 
to  contingent  remainders  created  by  way  of  use  or  devise.  It 
was  not  till  later  that  it  became  settled  that  springing  and 
shifting  uses  and  devises  were  not  only  valid  but  inde- 
structible.!-*  When  that  occurred  the  logical  incongruity  in 
leaving  contingent  remainders  destructible  by  a  rule  of  law 
defeating  intent,  if  as  events  turned  out  they  would  take  effect 
as  springing  future  interests,  became  apparent.     Renewed  ef- 

^lAnte,  §§77,  85.  Jac.  590,  2  Eoll.  Eep.  196;   Kales' 

12  (1594)  1  Coke  120a;  Kales'  Cases  on  Future  Interests,  Qo;  Gray, 
Cases  on  Future  Interests,   82.  Rule    against    Perpetuities,     §159;' 

13  (1599)  1  Coke  66b;  5  Gray's  Snowe  v.  Guttler  (1664),  1  Lev. 
Cases  on  Prop.,  2n(i  ed.  42;  Kales'  135;  Gray,  Rule  against  Perpetui- 
Cases  on  Future  Interests,  98.  ties,  §  165. 


i-»  Pells     V.    Brown     (1620),     Cro. 


85 


§  97]  INTRODUCTION    TO   THE   LAW    OF   REAL   PROPERTY    [CH.  IV 

forts  seem,  tiierefoie,  to  have  been  made  to  defeat  the  application 
of  the  rule  of  destruetibility  of  contingent  remainders.!^    These 
failed  presumably  because  the  feudal  rule  of  destructibility  had 
become  established  and  acted  upon.''^     The  announcement  that 
contingent  remainders  would  still  be  destructible  in  spite  of  the 
fact  that  springing  and  shifting  uses  and  devises  were  valid  and 
indestructible  was  made  by  declaring  in  substance  that  if  a 
future  interest  after  a  particular  estate  of  freehold  could  by 
possibility  take  effect  as  a  remainder  it  must  do  so  or  fail  en- 
tirely.   It  could  not  take  effect  as  a  springing  or  shifting  future 
interest.    Lord  Hale  in  Purefoij  v.  Rogers^''  said:     "Where  a 
contingency  is  limited  to  depend  on  an  estate  of  freehold  which 
is  capable  of  supporting  a  remainder,  it  shall  never  be  construed 
to  be  an  executory  devise,  but  a  contingent  remainder  only  and 
not  otherwise."     Lord  Northington  in  Carivardine  v.  Carwar- 
dine  ^^  said:     "It  is  a  certain  principle  of  law,  that  wherever 
such  a  construction  can  be  put  upon  a  limitation  as  that  it  may 
take  effect  by  way  of  remainder,  it  shall  never  take  place  as  a 
springing  use  or  executory  devise."    Lord  Ellenborough  in  Doe 
V.  Roach  1^  said:  "*     *     *     it  is  a  rule  of  law  that  no  limitation 
shall  operate  by  way  of  executory  devise,  which,  at  the  time  of 
the  testator's  death,  was  capable  of  operating  by  way  of  con- 
tingent remainder."  Lord  St.  Leonards  in  Cole  v.  Sewell  -^  said: 
— "Now,  if  there  be  one  rule  of  law  more  sacred  than  another, 
it  is  this,  that  no  limitation  shall  be  construed  to  be  an  executory 
or  shifting  use,  which  can  by  possibility  take  effect  by  way  of 
remainder."  21    The  same  idea  as  that  contained  in  the  passages 
quoted  was  expressed  in  the  rule  that  one  could  not,  by  events 
happening  after  the  interests  were  created,  turn  a  contingent 
remainder  into  a  springing  executory  interest.     This,  in  effect, 
forbade  any  attempt  to  split  by  operation  of  law  the  contin- 

isWeale    v.   Lower    (1672),   Poll.  388;  Kales'  Cases  on  Future  Inter- 

65;   Southc'ote  v.   Stowell    (1678),  1  ests,  101, 

Mod.  226,  2:',7,  2  Mod.  207;   Sugden  18  (1757-8),  1  Eden,  27,  34. 

on  Powers,  8th  ed,  33-34.  i»  (1816),  5  M.  &  S.  482,  491,  492, 

leWeale  v.  Lower,  supra;  South-  20  (1843),  4  D.  &  War.   1,  27;   2 

cote  V.  Stowell,  supra;  Carwardine  v.  H.  L.  C.  186. 

Carwardine    (1757-8),    1    Eden,    27,  21  Many  other  expressions  to  the 

34;   Sugden  on  Powers,  8th  ed.  34-  same  effect  can  be  found.    See  Gray,, 

37.  Rule    against    Perpetuities,    3d    ed., 

17(1681),    2    Wms.    Saund.    380,  §§920,921. 

86 


Ch.  IV]     REVERSIONS    AND    REMAINDERS — LATER    HISTORY  [§98 

gencies  upon  which  tlie  contingent  remainder  was  limited.  It 
could  not  be  said  that  the  happening  of  tiie  contingency  before 
or  at  the  time  of  the  termination  of  the  preceding  estate  of 
freehold  was  one  event,  and  that  the  same  event  happening 
afterwards  was  another,  and  that  the  two  were  split  I)y  ojieration 
of  law  because  if  the  event  happened  before  or  at  the  time  of  the 
termination  of  the  preceding  estate  of  freehold  the  future 
interest  became  a  vested  remainder,  while  if  it  happened  after- 
wards it  took  effect  as  a  springing  executory  interest. 

§  98.  Application  of  the  rule  of  destmctibility  in  the  mod- 
ern cases — Where  the  remainder  is  limited  to  an  individual: 
Where  the  future  interest  after  the  particular  estate  of  freehold 
was  limited  to  an  individual  on  an  event  which  might  happen 
before,  or  at  the  time  of,  or  after  the  termination  of  the  preced- 
ing estate  of  freehold,  the  event  must  happen  before  or  at  the 
time  of  the  termination  of  the  preceding  estate  or  fail  entirely. 
The  common  instance  of  this  is  where  the  limitations  are  to  A 
for  life  and  then  to  the  fii-st  son  of  A  who  reaches  twenty-one. 
Here  the  expressed  intent  is  that  the  son  of  A  who  first  reached 
twenty-one,  either  before  or  after  the  termination  of  A's  life 
estate,  is  to  take.22  Nevertheless,  if  A  dies  before  any  son 
reaches  twenty-one  the  entire  remainder  fails.-'  Nor  would  the 
result  be  any  different  if  the  testator  said  that  the  rule  of  de- 
structibility  was  not  to  apply.  In  Mliite  v.  Summers  -^  it  was 
held  that  where  the  remainder  was  limited  to  the  eldest  son  of 
A  "who  shall  first  attain  or  have  atlained  the  age  of  twenty- 
one  years,"  the  testator  meant  to  include  the  eldest  son  no 
matter  when  he  reached  twenty-one,  Avhether  before  or  after 
the  termination  of  the  life  estate.  Nevertheless  the  contingent 
remainder  was  destroyed.  It  is  submitted  that  even  if  the  limi- 
tations were  to  A  for  life  and  then  to  the  eldest  son  of  A  who 
"either  before  or  after  A's  death"  shall  have  attained  twenty- 
one,  the  case  is  not  in  the  least  altered.    The  meaning  expressed 

22  White  V.  Summers  [1908]  2  Ch.  destiuctibility  of  contingent  remain- 
256,  Kales'  Cases  on  Future  Inter-  ders.  For  explanation  of  this  case 
ests,  134.  see  White  v.  Summers,  supra;  Gray, 

23  White  V.  Summers,  supra.  If  Rule  against  Perpetuities,  3rd  ed. 
In  re  Wrightson  [1904],  2  Ch.  95,  is  8  926;  Kales'  Cases  on  Future  Inter- 
contra,  it  must  be  regarded  as  wrong  ests,  91. 

or  as  repudiating  the  entire  rule  of  -^  Supra,  note  22. 

87 


§  99]  INTRODUCTION    TO    THE   LAW    OF    REAL   PROPERTY    [Ch.  IV 

is  the  same.  The  remainder  is  still  limited  to  the  same  person 
and  upon  the  same  event  precisely  as  it  was  before.  There  are 
not  two  gifts  on  separable  contingencies.  There  is  one  gift  in 
remainder  on  one  event  with  a  precautionary  phrase  declaring 
that  it  is  no  part  of  the  event  upon  which  the  eldest  son  is  to 
take  that  he  shall  reach  twenty-one  before  the  termination  of 
the  life  estate.  The  future  interest  as  limited  may  take  effect 
as  a  remainder.     The  rule  requires  that  it  do  so  or  fail. 

Again,  take  the  common  case  where  the  limitations  are  to  A 
for  life  and  then  to  5  if  he  survive  A.  This  means  that  B  is  to 
take  whenever  he  survives  A,  either  at  the  termination  of  A's 
life  estate  or  after  the  premature  termination  of  A's  life  estate, 
by  forfeiture  or  merger.  Yet  B's  remainder  fails  if  the  life 
estate  terminates  prematurely  during  A's  life.^^  Can  it  then 
make  any  difference  that  the  remainder  is  limited  "to  B  if  he 
survive  A,  whether  such  survivorship  occur  at  the  time  of  or 
after  the  termination  of  A's  life  estate"?  The  expressed  intent 
is  the  same  as  it  was  before.  The  additional  words  used  merely 
emphasize  the  fact  that  B  is  to  take  no  matter  when  the  survivor- 
ship occurs  with  reference  to  the  termination  of  the  preceding 
life  estate.  This  makes  more  plain,  but  it  adds  nothing  to,  what 
was  said  before.  The  character  of  the  remainder  is  the  same. 
It  should  be  held  destructible. 

§  99.  Suppose  the  remainder  be  limited  to  a  class  and  when 
the  life  estate  terminates  no  member  of  the  class  has  attained  a 
vested  interest:  Suppose,  for  instance,  the  limitations  be  to  A 
for  life,  remainder  to  such  children  of  A  and  B  as  survive  A 
and  B.  It  is  conceded  that  this  means  that  the  children  who 
survive  A  and  B  no  matter  when  that  occurs — whether  at  the 
time  of  or  after  the  termination  of  A's  life  estate — are  to  take.^^ 
Yet,  if  at  A's  death  B  is  still  living  so  that  no  children  have 

25  Dunwoodie   v.   Eeed,   3   Serg.   &  26  Cunliffe  v.  Brancker,  3  Ch.  Div. 

R.    (Pa.)   434.     The  same  result  oc-  393.     Here   Jessel,  M.  R.,   speaking 

curred  where  the  remainder  was  lim-  of  just  such  a  future  interest,  says: 

ited  to  an  individual  on  a  collateral  It  is  impossible  that  the  will  should 

contingency  other  than  survivorship.  take    effect    not    "through    any    de- 

Lyle  V.  Richards,  9  Serg.  &  R.  (Pa.)  feet  of  expression  of  intention,  but 

322;    Waddell   v.   Rattew,   5    Rawle  through    the    fault    of    the    rule    of 

(Pa.)    231.  law." 

88 


Ch.  IV]     REVERSIONS    AND    REMAINDERS — LATER   HISTORY  [§99 

survived  B,  the  remainder  to  the  entire  elass  of  ehildren  fails 
by  reason  of  the  rule  of  destructibility.^^ 

If  the  limitations  are  to  A  for  life,  remainder  to  such  children 
of  A  as  attain  twenty-one,  it  must  be  conceded  that  as  a  matter 
of  interpretation  this  means  that  the  children  of  A  who  reach 
twenty-one,  either  before  or  after  tlie  termination  of  A's  life 
estate,  are  to  take.  This  is  decisively  demonstrated  by  the  fact 
that  tiie  moment  the  rule  of  destructibility  is  removed  by  statute 
or  because  the  interests  are  ecpiitable,  so  that  full  scope  is  given 
to  the  expressed  intent,  the  children  who  reach  twenty-one  after 
the  death  of  the  life  tenant  are  allowed  to  take.2»    Yet,  if  at  A's 


27  Cunliffe  v.  Branckcr,  supra. 
So  where  the  remainder  is  to  a 
class  who,  to  take,  must  survive  the 
life  tenant,  and  the  life  estate  ter- 
minates prematurely  by  forfeiture  or 
merger,  none  have  survived  the  life 
tenant  and  therefore  the  remainder 
to  all  is  destroyed.  Redfern  v.  Mid- 
dleton,  Rice  L.  (S.  C.)  459;  Faber 
V.  Police,  10  S.  C.  376;  McElwee  v. 
Wheeler,  10  S.  C,  392;  Abbott  v. 
Jenkins,  10  Serg.  &  R.  (Pa.)  296; 
Stump  V.  Findlay,  2  Rawle-  (Pa.) 
168;  Belding  v.  Parsons,  258  111. 
422;  Barr  v.  Gardner,  259  111.  256; 
Messer  v.  Baldwin,  262  111.  48; 
Smith  V.  Chester,  272  111.  428;  Blake- 
ley  V.  Mansfield,  274  111.  133;  Ben- 
son V.  Tanner,  276  111.  594. 

The  same  is  true  where  the  re- 
mainder is  limited  to  a  class  on  a 
collateral  event  other  than  survivor- 
ship of  the  life  of  tenant,  and  the 
life  estate  terminates  prematurely 
by  forfeiture  or  merger.  In  such 
a  ease  none  of  the  class  is  entitled 
to  a  vested  interest  and  the  entire 
remainder  is  destroyed.  Craig  v. 
Warner,  16  D.  C.  (5  Mack.)  460; 
Bond  V.  Moore,  236  111.  576. 

28  Astley  V.  Micklethwait,  15  Ch. 
D.  59;  5  Gray's  Cases  on  Prop., 
2nd  ed.  65;  Kales'  Cases  on  Future 
Interests,  122;  In  re  Robsop,  1  Ch. 


116;  In  re  Bourne,  56  L.  T.  Rep. 
(N.  S.)  388;  Blaekman  v.  Fysh,  3 
Ch.  209;  In  re  Freme,  3  Ch.  167, 
170;  Challis  on  Real  Property,  2nd 
ed.  111. 

In  Festing  v.  Allen,  12  Mees  &  W. 
279,  after  a  gift  to  the  issue  of  the 
life  tenant  who  attained  twenty-one, 
there  was  a  gift  over  "for  want  of 
any  such  issue."     At  the   death  of 
the   life   tenant   there   were   several 
children,     but     none     had     reached 
twenty-one.      The   gift   to    the   chil- 
dren failed,  but  the  gift  over  could 
not    take    effect    because    the    event 
had  not  happened  upon  which  it  was 
limited,  that  is,  because  "for  want 
of    such    issue ' '    meant    * '  for    want 
of  issue  of  the  life  tenant  as  should, 
either  before  or  after  the  death  of 
the  life  tenant,  reach  twenty-one." 
Perceval   v.    Perceval,    L.    R.   9    Eq. 
386,    accord.      In    Dean    v.    Dean, 
11891]    3    Ch.    150,    the    legal    limi- 
tations were  to  A  for  life  and  then 
to    such   children   of   A    "as   either 
before   or    after    the   death    of    A " 
should    attain    twenty-one.      In    dis- 
cussing whether  the  expressed  intent 
of  the  settlor  was,  in  this  case,  any 
different    from    what    it    was    where 
the   limitations   were   to   A  for   life 
and  then  "to  such  children  of  A  as 
attain  twenty-one,"  Chitty,  J.,  says, 

89 


§  99]  IXTRODUCTIOX    TO    THE   LAW    OF    REAL   PROPERTY    [CH.  IV 

death  none  luive  readied  tAventy-one,  none  at  all  can  take.     The 
remainder  fails  or  is  destroyed.-'^ 

Snppose  now  there  is  added  in  the  above  eases  the  expressed 
direction  that  the  remaindermen  are  to  take  whether  the  event 
happens  before  or  after  the  termination  of  the  life  estate.  Sup- 
pose, for  instance,  the  limitations  are  to  A  for  life,  remainder 
to  such  children  of  A  as  "either  before  or  after  the  death  of  A'^ 
attain  twenty-one,  and  suppose  at  A's  death  no  child  has  at- 
tained twenty-one.  It  is  submitted  that  the  case  is  not  in  the 
least  altered.  The  meaning  is  exactly  the  same  as  it  was  before. 
The  nature  of  the  future  interest  is  the  same.  It  may  still  take 
eitect  as  a  remainder  or  as  a  springing  executory  interest. 
According  to  the  rule  it  must  take  effect  as  a  remainder  or  fail 
entirely.  There  are  not  two  gifts  to  two  separate  classes,  one  to 
take  in  one  event  and  the  other  in  another.  There  is  a  gift  to 
one  class  on  one  event  only,  namely,  attaining  twenty-one.  The 
additional  language  is  again  simply  a  precautionary  emphasis 
of  the  intention  that  this  event  is  not  in  any  way  restricted  so 
that  it  must  occur  before  A's  death,  but  that  the  children  who 
reach  twenty-one  are  to  take  no  matter  when  the  event  happens, 
Lechmere  and  Lloyd's  Case^^^  rightly  understood  does  not  pre- 
vent the  remainder  in  the  case  put  from  being  destructible,  in 
view  of  the  fact  that  in  that  case  there  were  at  A's  death  chil- 
dren who  had  attained  twenty-one  and  the  question  was  whether 
the  interest  of  those  who  were  in  esse  but  who  had  not  attained 
twenty-one  was  destroyed.  That  is  quite  a  different  case  subject 
to  quite  different  considerations  from  the  one  now  being  con- 
very  frankly:  "So  far  as  the  tes-  W.  279;  5  Gray's  Cases  on  Prop,, 
tator's  intention  is  concerned,  the  2nd  ed.  60;  Kales'  Cases  on  Future 
meaning  of  the  limitations  is  the  Interests,  108;  Ehodes  v.  White- 
same;  in  both  cases  the  testator  in-  head,  2  Dr,  &  Sm.  532;  Holmes  v. 
tends  that  all  the  children  who  at-  Preseott,  33  L.  J.  Ch,  N.  S.  264; 
tain  twenty-one,  whether  before  or  Bull  v.  Pritchard,  5  Hare,  567,  1 
after  the  death  of  the  tenant  for  life,  Euss,  213.  In  Browne  v.  Browne, 
shall  take;  and  it  would  seem  3  Sm,  &  G,  568,  the  remainder  to 
strange  to  anyone  not  acquainted  the  children  was  erroneously  held 
with  the  nicety  of  the  law  relating  vested  subject  only  to  be  divested 
to  real  property  in  this  country,  that  if  the  children  died  under  twenty- 
any  different  legal  effect  should  be       one. 

given  to  a  mere  difference  in  words  ^o  18  Ch,  D.  524;  5  Gray's  Cases 

which  mean  the  same  thing."  on  Prop.,  2nd  ed.  69;  Kales'  Casea 

29Festing    v.    Allen,    12    Mees    &      on  Future  Interests,  126. 

90 


Ch.  IV]     REVERSIONS    AND    REMAINDERS— LATER    HISTORY  [  H'J^ 

sidered  where  at  the  life  tenant's  death  no  eliild  had  attained 
twenty-one.     The  propriety  of  this  distinction  is  dealt  with  at 
length,  hereafter.-' •     Nevertheless,  Chitty,  J.,  in  Dean  v.  Dean^^^ 
where  none  of  the  children  had  reached  twenty-one  when  the  life 
estate  terminated,   thonj?ht    Lech  mere   and   Lloyd's    Case   con- 
trolled and  held  the  future  interest  to  the  children  who  should 
reach  twenty-one  to  be   indestructible.     He  assei-ted  that   the 
limitations  involved  were  precisely  the  same  in  meaning  as  those 
presented  in  Festing  v.  Allen  ■'■'  where  the  remainder  was  limited 
to  the  children  who  reached  twenty-one  without  saying  ''either 
before  or  after  the  death  of  the  life  tenant."    He  admitted  that 
the  reasoning  by  which  the  future  interest  in  the  children  who 
reached  twenty-one  was  destructible  in  Festing  v.  Allen  and  took 
effect  as  an  executory  devise  in  Dean  v.  Dean,  while  "subtle" 
was   "not  more  subtle  or   artificial  than  the   reasoning  of   a 
scholastic  character  which  the  common-law  judges  of  former 
times  applied  to  cases  of  this  kind."     The  court  might  as  well 
have  said  that  a  distinction  without  a  difference  was  allowable 
to  avoid  the  feudal  rule  of  destructibility  and  give  effect  to  the 
testator's  intention.    The  fact  is  that  so  long  as  the  rule  of  de- 
structibility is  recognized  and  supported  on  principle,  Dean  v. 
Dean  is  logically  wrong.    So  long  as  the  rule  of  destructa)dity 
IS  recognized  as  itself  an  anachronism  and  logically  a  mistake 
after  springing  and  shifting  interests  became  valid  and  inde- 
structible, Dean  v.  Dean  may  be  justified  as  the  refusal  to  apply 
the  rule  of  destructibility  to  a  remainder  limited  in  language  to 
which  the  rule  had  never  before  been  applied. 

§  100.  Now  suppose  the  remainder  is  limited  to  a  class,  but 
before  the  life  estate  terminates  the  interest  of  one  member  of 
the  cla^s  has  vested,  and  other  members  of  the  class  are  in  esse 
who  might  according  to  the  expressed  intent  take  vested  inter- 
ests in  the  future— Typical  cases  stated  and  analyzed:  Suppose 
the  limitations  are  (1)  to  A  for  liiV.  rcnu.indor  to  such  children 
of  A  as  reach  twenty-one;  and  (2)  to  A  for  life,  remainder  to 
such  children  of  A  as  "either  before  or  after  A's  death"  reach 
twentv-one.     Both  cases  are  the  same  so  far  as  the  expressed 


31  Post,  §  102. 

a-*  (1891),  o  Ch.  150;  5  Gray's 
Cases  on  Prop.,  2nd  ed.  71;  Kales' 
Cases  on  Future  Interests,  128. 


3s  12  Mees  &  W.  279. 


91 


§  100 J    INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY  [Ch.  IV 

intent  is  concerned.  The  first  means  exactly  what  the  second 
more  emphatically  says.  The  second  gives  to  the  children  of  A 
the  same  remainder  as  the  first  on  the  same  contingency,  merely 
inserting  the  precautionary  phrase  which  emphasizes  that  the 
contingency  of  reaching  twenty-one  is  to  have  no  reference  to 
its  occurrence  before  the  termination  of  the  life  estate.  There 
is  no  separation  of  the  children  into  two  classes  and  the  giving 
to  each  class  an  interest  on  a  different  contingency.  If  no  chil- 
dren have  reached  twenty-one  when  the  life  estate  terminates 
it  is  assumed  that  the  entire  remainder  would  be  destroyed  in 
both  cases  alike. ^^ 

Suppose,  however,  that  before  the  termination  of  A's  life 
estate  in  both  cases  one  child,  X,  has  reached  twenty-one  so  that 
the  remainder  has  vested  in  him.  Clearly,  no  rule  of  destructi- 
bility  can  interfere  with  X's  interest.  Suppose  there  is  another 
child,  Y,  who  has  not  yet  attained  twenty-one.  Is  his  interest 
destroyed  by  A's  death  before  Y  reaches  twenty-one? 

In  both  cases  alike  it  might  be  said  that  the  interest  of  Y  could 
by  possibility  take  effect  as  a  remainder  because  if  Y  reached 
twenty-one  before  the  determination  of  the  life  estate  Y  would 
come  a  co-owner  of  the  remainder  with  X  and  as  such  would  be 
a  remainderman.     Furthermore  Y's  interest  would  be  one  lim- 
ited on  an  event  which  might  happen  before  or  after  or  at  the 
time  of  or  after  the  termination  of  the  life  estate.     Looked  at 
solely  in  its  relation  to  the  life  estate  Y's  interest  would  seem 
to  have  all  the  attributes  of  a  contingent  remainder  which  was 
destructible.    But  that  would  be  only  a  partial  view  of  the  case 
presented.     If  such  a  remainder  had  been  limited  to  a  class 
before  the  Statutes  of  Uses  and  Wills,  it  may  be  assumed  that 
only  the  first  member  of  the  class  in  whom  the  remainder  vested 
would  take.3-^     The  interests  of  the  other  members  of  the  class 
would  be  looked  upon  as  shifting  future  interests  divesting  the 
fee  which  had  already  vested  in  X  and  would  be  wholly  void 
for  that  reason.     When,  however,  a  remainder  to  a  class  was 
attempted  to  be  created  after  the  Statutes  of  Uses  and  Wills  and 
by  way  of  use  or  devise,  it  was  valid  so  far  as  the  other  mem- 
bers of  the  class  were  concerned  simply  because  shifting  interests 

3i  Ante,   §99.  35  Ante,  §26. 

92 


Ch.  IVJ     RPJVERSIONS    AND    REMAINDEKS — LATER    HISTORY  f  S  101 

hy  way  of  use  and  devise  were  allowed.'"'  It  follows  that  Y's 
interest  was  at  all  times  until  it  vested,  a  shift innr  exeentory 
interest.  It  took  efl'cct  hy  way  of  divesting  a  vested  remainder 
in  fee.  It  was  l)oiind  from  the  heginning  to  take  effect  in  that 
way  if  it  took  effect  at  all.  It  was  likewise  void  under  the 
feudal  land  law.  it  was  valid  only  h}^  way  of  use  or  devise. 
As  such  why  shouhl  it  not  be  indestructible?  The  fact  that 
when  it  vested  it  was  like  a  remainder  Avas  of  no  more  conse- 
quence than  if  the  limitations  had  been  to  A  for  life,  remainder 
to  B  and  his  heirs,  ])ut  if  B  died  within  two  years  to  C  in  fee. 
Here  C's  interest,  if  B  died  within  the  two  years  and  A  still 
lived,  might  take  effect  as  a  remainder,  but  only  after  it  had 
divested  a  previously  vested  remainder.  Hence  it  was  at  all 
times  till  it  vested  a  shifting  executory  interest  and  as  such  must 
have  been  valid  and  indestructible. 

Obviously,  the  eases  put  at  the  commencement  of  this  para- 
graph were  bound  to  be  the  point  of  contention  between  those 
who  would  extend  or  press  to  its  logical  conclusion  the  main- 
tenance of  feudal  principles  regarding  the  validity  of  future 
interests  and  those  who  would  extend  to  its  logical  conclusion 
the  new  liberty  in  creating  future  interests  permitted  by  the 
Statutes  of  Uses  and  Wills.  It  is  not  a  case  of  one  faction  being 
right  and  the  other  being  wrong,  so  much  as  it  is  w^hich  of  two 
inconsistent  and  competing  principles  shall  prevail  in  a  given 
case.  Sympathy  with  the  changes  wrought  by  the  Statutes  of 
Uses  and  Wills  so  as  to  free  testators'  and  settlors'  efforts  from 
the  restrictions  of  the  feudal  land  law,  together  with  a  lively 
appreciation  of  the  fact  that  when  springing  and  shifting  future 
interests  by  way  of  use  and  devise  were  allowed  and  became 
indestructible  the  feudal  rule  of  destructibility  of  contingent 
remainders  not  only  defeated  the  expressed  intention  but  be- 
came logically  unsound,  would  (provided  authority  did  not 
prevent)  easily  tip  the  scales  in  favor  of  the  remainder  to  1' 
being  valid  and  indestructible. 

^  101.  State  of  the  Eng-lish  authorities — Where  the  limita- 
tions are  to  "A  for  life,  remainder  to  such  children  of  A  as 
reach  twenty-one"  and  where  at  the  time  of  A's  death  X,  one 
of  the  children  of  A,  has  reached  twenty-one  and  another,  Y, 
has  not:     Fcanie  seems  to  say  that  Y's  interest  is  destroyed. 

36  Jn/c,   §  74. 

93 


§  101  j   INTRODUCTION  TO  THE  L.VW  OF  REAL  PROPERTY  [Ch.  IV 

He  says:  3'^  "For  where  a  eontiiigent  remainder  is  limited  to 
the  use  of  several,  who  do  not  all  become  capable  at  the  same 
time :  notwithstanding  it  vests  in  the  person  first  becoming  capa- 
ble ;  yet  shall  it  devest  as  to  the  proportions  of  the  persons  after- 
wards becoming  capable,  before  the  determination  of  the  preced- 
ing estate."  The  suggestion  that  the  child  who  attains  twenty-one 
after  the  determination  of  the  life  estate  will  not  take  is  very 
cautiously  stated,  and  Fearne  cites  no  authorities  actually  hold- 
ing that  T's  interest  is  destroyed.  Jarman  says :  ^^  "*  *  *  the 
rule  before  the  act  was,  that  those  children  alone  took  who 
attained  twenty-one  before  the  particular  estate  determined,  to 
the  exclusion  of  others  wlio  might  afterwards  attain  that  age." 
No  cases,  however,  are  cited  actually  so  holding,  where  the 
validity  of  Y's  interest  was  involved.  Theobald  says:^® 
"  *  *  *  only  those  children  can  take  whose  interests  become  vested 
before  the  determination  of  the  life  interest,"'*'^  but  he  cites 
no  cases  precisely  so  holding  and  involving  the  right  of  Y  to 
take.  In  Blackman  v.  Fysh  ^^  Lindley,  L.  J.,  assumes  without 
question  (though  the  case  did  not  turn  on  this)  that  "the  limi- 
tations to  the  children  were  clearly  contingent  remainders,  and  if 
the  son  had  died,  those  of  his  children  only  who  had  before  his 
death  attained  twenty-one,  or  being  daughters  had  married 
under  that  age,  would  take.  Then  we  should  have  been  obliged 
to  give  effect  to  the  rules  of  law  as  to  contingent  remainders, 

37  Contingent      Eemainders,     312,  construction    for    the    determination 
313.  of    the    class    fixed    the    testator's 

38  Vol.  I  (6th  Am.  ed.)  *  833.  actual    intention    as    including   only 

39  Wills  (7th  ed.)  312.  children    born    before    the    determi- 

40  See  also  Challis  on  Real  Proii-  nation  of  the  life  estate.     See  post, 
erty,  3d  ed.  125.  §  104. 

In  Mogg  V.  Mogg,  1  Mer.  654  In  Archer  v.  Jacobs,  125  la.  467, 
(Kales'  Cases  on  Future  Interests,  the  limitations  were  to  A  for  life 
232)  the  limitations  were  in  sub-  and  then  to  her  children.  Two  were 
stance  to  A  for  life  and  then  to  the  in  esse  when  the  life  estate  termi- 
children  of  B  born  and  to  be  born.  nated  by  merger.  It  was  held  that 
Some  children  were  born  before  the  the  remainder  to  the  unborn  chil- 
life  estate  had  terminated  and  some  dren  was  terminated  by  the  rule  of 
after.  It  was  held  that  the  chil-  destructibility.  Whether  this  could 
dren  born  afterwards  could  not  take.  have  gone  on  the  rule  as  to  the  de- 
It  is  not  made  clear  whether  this  termination  of  the  class,  see  post, 
was  because  the  rule  of  destructi-  S  104. 
bility  applied  or  because  a  rule  of  4i  [1892]  3  Ch.  209,  223. 

94 


Ch.  IVJ     reversions    and    remainders — LATER    HISTORY  [§  102 

and  to  defeat  the  intention  of  the  testator  that  those  who  after- 
wards attained  twenty-one  should  participate." 

These  dicta  rather  induce  the  conehision  that  whih'  direct 
authority  may  be  lacking,  yet  conveyancers  and  conveyancing 
counsel  in  England  liave  for  a  long  time  acted  upon  the  assump- 
tion that  the  above  statement  of  the  law  and  its  application 
were  correct.  Perhaps  it  is  now  too  late  to  overturn  the  con- 
clusion stated,  so  that  in  England  it  must  be  accepted  that  the 
feudal  rule  of  destructibility  applies  to  Y's  interest  and  defeats 
it.  Yet  the  precarious  position  of  such  a  conclusion  at  once 
appears  when  we  have  come  to  observe  the  result  reached  by 
Sir  George  Jessel,  M.  R.,  in  Lechmere  and  Lloyd's  case  and  the 
favor  with  which  that  ease  was  received.'*- 

§  102.  Where  the  limitations  were  to  A  for  life,  remainder 
to  such  children  of  A  as  "either  before  or  after"  A's  death, 
reach  twenty-one  and  where  at  the  time  of  A's  death,  X,  one 
of  the  children  of  A,  has  reached  twenty-one  and  another,  Y, 
has  not:  Here  we  have  precisely  the  same  case  as  that  dealt 
with  in  the  preceding  section.  The  fact  that  the  remainder  is 
limited  to  such  children  as  "either  before  or  after  the  death  of 
A"  attained  twentj^-one  makes  no  difference  in  the  expressed 
meaning.  It  does  not  make  a  gift  to  two  separate  classes  on 
different  events.  The  gift  is  still  to  the  same  class  on  the  same 
event.  Precautionary  words  have  merely  been  added  to  make 
it  plain  that  the  children  are  to  take  no  matter  when  the 
event  occurs  with  reference  to  the  termination  of  the  preceding 
life  estate. 

Hall,  V.  C,  in  Brackenhurij  v.  Gihhons,'^''  evidently  observ- 
ing that  the  case  now  presented  was  exactly  the  same  as  that 
dealt  with  in  the  preceding  section,  and  believing  the  law  to  be 
as  there  stated,  held  the  interest  of  Y  to  be  destroyed. 

Five  years  later  precisely  similar  limitations  came  before 
Jessel,  M.  R.,  in  Lechmere  and  Lloyd's  case.^^  He  said  the  rule 
of  destructibility  was  "harsh.  Why  should  I  extend  it?"  He 
clearly  felt  that  he  had  a  case  which  he  could  deal  with  in  the 
freest  manner  on  principle  and  that  on  principle  the  rule  of 
destructibility  should  be  held  down  to  the  precise  cases  where 

*^Post,  §§102,  103.  Cases  on  Prop.,  2n(l  ed.  69;   Kales' 

*3  [1876J   2  Ch.  D.  417.  Cases  on  Future  Interests,  126. 

**  [1881]  18  Ch.  D.  .'524;  5  Gray's 

95 


§  102]    INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY  [Ch.  IV 

its  applicability  had  been  determined  by  authority.  The  con- 
tinuance of  the  doctrine  of  destractibility  after  springing  and 
shifting  future  interests  became  valid  and  indestructible  was  illo- 
gical and  anomalous.  Jessel  was  prepared  on  this  round  to  refuse 
the  application  of  the  rule  of  destructibility  in  any  case  where 
authority  did  not  require  it.  In  the  case  where  the  remainder 
had  already  vested  in  one  member  of  the  class,  the  feudal  rule 
requiring  the  vesting  of  the  remainder  before  the  termination 
of  the  life  estate  was  certainly  satisfied,  and  it  was  clear  that 
the  interests  of  the  other  members  of  the  class  were  bound  to 
take  effect  as  shifting  executory  interests  divesting  a  previously 
vested  remainder.  Authority,  so  far  as  judicial  decisions  were 
concerned,  was  apparently  entirely  lacking  to  require  an  appli- 
cation of  the  rule  of  destructibility  to  Y's  interest.  It  may 
be  assumed  that  the  practice  of  conveyancers  had  never  dealt 
extensively  with  the  case  where  the  remainder  was  limited  to 
the  children  "who  either  before  or  after  the  termination  of  A's 
life  estate  attained  twenty-one, ' '  Jessel,  therefore,  very  properly 
insisted  that  the  rule  of  destructibility  should  not  be  applied. 

Jessel  should  have  admitted  that  the  logic  of  his  conclusion 
would  have  made  Y's  interest  indestructible  where  the  remainder 
was  "to  such  children  of  A  as  reached  twenty-one,"  and  that 
if  Y's  interest  in  such  a  case  was  to  be  regarded  as  still  de- 
structible it  was  because  a  long  continued  practice  of  con- 
veyancers required  that  it  should  be  so.  The  weakness  of 
Jessel 's  opinion  is  that  instead  of  doing  this  he  put  forward 
a  purely  subtle  and  scholastic  distinction  without  a  difference 
between  the  case  where  the  remainder  was  to  "such  children 
of  A  as  reached  twenty-one"  and  where  the  remainder  was  to 
"such  children  of  A  as  either  before  or  after  A's  death  reached 
twenty-one. ' ' 

In  3Iiles  V.  Jarvis  ■*^>  the  limitations  were  to  A  for  life,  re- 
mainder to  the  children  of  B  "living  at  the  time  of  A's  death 
or  thereafter  to  be  born."  At  A's  death  some  children  were  in 
esse  and  the  remainder  had  vested  in  them.  Hence,  the  inde- 
structibility of  the  gift  to  those  afterwards  to  be  born  was  clear 
upon  the  i^^easoning  upon  which  Lechmere  and  Lloyd's  case  is 
to  be  supported.     In  In  re  Bonrne  ^"  the  limitations  were  to  A 

*5  24  Ch.  D.  633.  4«  56  L.  T.  Kep.  (N.  S.)   388. 

96 


Ch.  1\'J     KEVEUSIONS    and    remainders — LATER    HISTORY         [§  10.{ 

for  life  and  tlu-u  to  such  children  of  A  as  should  attain  twenty- 
one  The  mystical  words  "before  or  after  A's  death"  were 
not  present.  There  was  merely  a  clause  that  trustees  were 
to  take  the  rents  and  issues  during  the  minority  of  any  child 
after  the  life  tenant's  death  upon  trust  for  the  child,  thus 
showing  that  children  who  did  not  reach  twenty-one  till  after 
the  life  tenant's  death  were  expected,  and  expressly  intended 
to  take.  Two  children  reached  twentj'-one  before  the  life  tenant' 
died  and  Kaj-,  J.,  held  that  the  gift  took  effect  in  the  others 
as  an  executory  devise.  This,  it  is  submitted,  presses  Lechmere 
and  Lloijd's  case  far  toward  its  logical  conclusion  that  in  all 
cases  where  the  limitations  are  to  A  for  life,  remainder  to 
such  children  of  A  as  reach  twenty-one,  without  the  words 
"either  befoi-e  or  after  A's  death"  the  interest  of  Y  is  inde- 
structible. 

§  103.  The  Massachusetts  Supreme  Court  has  extended  the 
rule  of  In  re  Lechmere  and  Lloyd  logically  to  the  case  where 
the  limitations  are  to  A  for  life,  remainder  to  such  children  of 
A  as  reach  twenty-one,  and  where  one  child  has  reached  twen- 
ty-one before  the  life  tenant's  death:  This  is  the  holding  in 
the  recent  case  of  Simonds  v.  Simonds*'^  The  court  seems  very 
clearly  to  have  perceived  that  where  the  remainder  vested  in 
two  children  before  the  life  estate  terminated,  the  interest  of 
the  other  children  took  effect  onlj-  as  a  shifting  use  and  as  such 
was  not  subject  to  any  rule  of  destructibility.  The  court  very 
propei'ly  relied  upon  Lechmere  and  Lloyd's  case  and,  in  Massa- 
chusetts no  doubt,  very  properly  threw  out  any  distinction 
between  the  case  of  a  remainder  to  the  children  "who  reached 
twenty-one"  and  the  children  who  "either  before  or  after  the 
life  tenant's  death"  reached  twenty-one.  There  was,  in  all 
probability^  no  conveyancers'  practice  in  Massachusetts  which 
would  require  the  rule  of  destructibility  to  be  applied  in  one 
of  these  cases  any  more  than  in  the  other.  It  is  believed  that 
in  other  American  jurisdictions  the  result  reached  in  Simonds 
1'.  Simonds  ought  to  be  and  Avill  be  followed."*^ 

••7  199  Mass.  552;  Kales'  Cases  on  then  to  A's  children,  and  before  the 
Future  Interests,  148.  termination    of    A 's    life    estate    by 

■•8  Observe,  however,  that  in  Arch-  merger  two  children  were  born,  the 
er  V.  Jacobs,  125  la.  467,  where  the  court  held  that  the  interest  of  the 
limitations  were  to  A  for  life  and  unborn  children  was  destroyed. 
Kales  Fut.  Int. — 7  QJ 


§  104]        INTRODUCTION    TO    THE   LAW    OF   REAL   PROPERTY    [Ch,  IV 

§  104.  Where  the  remainder  is  to  a  class,  the  operation  of 
the  rule  of  destructibility  must  be  distinguished  from  the 
operation  of  rules  of  construction  for  the  determination  of  the 

class:  AVhere  the  limitations  are  to  A  for  life,  remainder  to 
the  ehildren  of  B  Avho  reach  twenty-one,  if  the  rule  of  de- 
structibility be  in  force  and  applicable,  only  such  children  will 
take  as  reach  twenty-one  before  the  termination  of  the  life 
estate.  If  that  rule  is  not  in  force  or  is  inapplicable  then  the 
question  arises  as  to  how  many  are  included  in  the  class.  This 
is  a  question  of  construction.  If  the  usual  rule  as  to  personal 
property  be  followed  the  class  will  close  when  the  life  tenant 
dies  or  the  first  child  reaches  twenty-one,  whichever  last  hap- 
pens."*^ But  if  this  be  regarded  as  a  rule  which  cuts  down  the 
natural  and  usual  meaning  because  of  the  inconvenience  of 
having  new  interests  arise  in  personal  property  after  it  has 
been  distributed,  then  where  real  estate  is  involved  and  there 
is  not  the  same  inconvenience,  the  natural  and  usual  meaning 
of  the  words  might  be  taken  and  the  class  enlarged  to  include 
all  the  children  born  at  any  time.  This  was  done  in  Blackman 
V.  Fysh  ^'^  where  the  remainder  was  to  children  born  or  to 
be  born  who  Should  live  to  attain  twenty-one. 

Now  suppose  the  limitations  are  to  A  for  life,  remainder  to 
the  children  of  B,  and  B  has  a  child  or  children  at  the  date 
of  the  will,  at  the  testator's  death  and  at  the  death  of  the  life 
tenant,  and  others  are  born  afterwards.  Does  the  class  close 
at  A's  death?  If  the  rule  of  destructibility  is  in  force  and 
applicable  this  need  not  be  decided,  because  that  rule  will  permit 
only  those  children  who  are  in  esse  at  the  testator's  death  to 
take.-'"''      If  the  rule  of  destructibility  be  not  in  force  or  not 

Leehmere  and  Lloyd's  Case  and  its  388,   and   Simonds   v.   Simonds,   199 

logical   extension   was   not   observed.  Mass.   552,   only   needed   to   go  this 

Perhaps    the    result    reached    might  far. 

have  gone  on  the  ground  that  by  a  so  [1892]  3  Ch.  209. 

rule   of  construction   concerning  the  ^i  in  Mogg  v.  Mogg,  1  Mer.  654 

determination    of    classes    the   class  (Kales'  Cases  on  Future  Interests, 

closed    when   the   life    estate    termi-  232)  it  is  impossible  to  say  whether 

nated   and   the  remainder   vested   in  the  court  went  upon  the  application 

possession.  of    the    rule   of    destruetibilty    or    a 

49  Theobald,    Wills,    7th    ed.    310.  rule  of  construction  as  to  the  deter- 

In  re  Robson,   11916]   1  Ch.  116,  In  mination  of  the  class.     The  learned 

re  Bourne,   56   L.   T.   Rep.    (N.   S.)  author  in   3  Preston   on   Conveyanc- 

98 


Cll.  IVJ     UEVEKSKJNS    AND    KEMAINDEKS — LATER    IIISTOKV  [§104 

applicable,  tlien  the  qiu'stioii  of  construction  arises  as  to  the 
(Ictcnnination  of  the  chiss,  and  tlie  reasoning  already  indicated 
is  applicable.  If  personal  property  were  involved  the  class 
\v()nld  close  at  the  life  tenant's  death.''-  If  that  is  in  accordance 
with  the  fair  and  primary  meaning  of  the  language  used  then 
it  should  apply  equally  where  real  estate  is  involved.  If,  how- 
ever, the  natural  and  i)rimary  meaning  would  include  all  the 
children  of  B  born  at  any  time,  but  that  meaning  is  cut  down 
because  of  the  inconvenience  of  holding  up  a  distribution  of 
personalty  until  all  possible  members  of  the  class  are  ascer- 
tained, then  such  reason  of  convenience  would  not  have  the 
same  application  where  real  estate  Avas  involved  and  all  the 
children  born  at  any  time  might  be  let  in  to  share  in  the  re- 
mainder. 

Now  suppose  the  limitations  are  to  A  for  life,  remainder  to 
the  children  of  B,  but  B  has  no  child  when  the  will  was  made 
or  at  the  testator's  death  or  at  the  death  of  the  life  tenant,  can 
children  born  afterwards  take?  If  the  rule  of  destructibility 
is  in  force  and  applicable  they  cannot.  If  that  rule  is  not  in 
force  or  is  not  applicable,  then  if  personalty  were  involved 
all  the  children  born  at  any  time  could  take.^^  In  Hayward  v. 
Spaulding  ^^  the  same  rule  was  applied  to  a  remainder  in  real 
estate  which  was  not  destructible. 

The  rules  for  the  determination  of  classes  are  rules  of  con- 
struction merely  and  yield  at  once  to  any  expressed  intention 
inconsistent  with  them.  Where,  for  instance,  the  remainder, 
as  in  Lechmere  and  Lloyd's  case,-"*^  was  limited  to  the  children 
of  the  life  tenant  who  should  "either  before  or  after  the  life 
tenant's  death"  attain  twenty-one,  the  words  quoted  were  ob- 
viously inserted  to  overcome  any  supposed  rule  of  construc- 
tion that,  where  the  remainder  was  to  children  who  reached 
twenty-one,  only  those  were  intended  to  take  who  had  reached 
twenty-one  when  the  life  estate  terminated.    The  phrase  "either 

ing,  555,  evidently  thought  that  the  52  Theo])al(l,    Wills,    7th    ed.    306, 

rule   of   destructibility   a{>]ilied.      In  307. 

Archer  v.   Jacobs,   125  la.   467,  the  53  Id,  307. 

children  born  after  the  termination  54  75  N.  H.  92. 

of   the  life   estate  by   merger  were  55  ig  Ch.  D.  524;   5  Gray's  Cases 

excluded  on  the  ground  of  the  ap-  on  Prop.,  2nd  ed.  69;   Kales'  Cases 

plication  of  the  rule  of  dcstructibil-  on    Future   Interests,   126. 

ity. 

99 


§  105]        INTRODUCTION    TO    THE   LAW    OF    REAL   PROPERTY    [Ch.  IV 

before  or  after  the  life  tenant's  death"  did  not,  therefore, 
change  the  character  of  the  remainder  or  the  meaning  to  be 
given  to  the  language  by  which  it  was  created.  It  did  not 
make  distinct  gifts  to  two  different  classes.  In  Miles  v.  Jarvis  ^^ 
the  limitations  were  to  A  for  life  and  then  to  the  children  of  B 
'  *  Avho  survived  A  or  were  born  afterwards. ' '  The  phrase  ' '  who 
survived  A  or  were  born  afterwards"  was  plainly  put  in  to 
overcome  any  rule  of  construction  that  only  such  children  would 
take  as  were  born  prior  to  the  death  of  the  life  tenant.  The 
extent  of  the  class  was  made  clear.  Then  the  question  of  the 
destructibility  (by  a  rule  of  law  defeating  intent)  of  the  in- 
terest of  those  not  born  until  after  A's  death,  arose. 

§  105.  As  to  the  application  of  the  rule  of  destructibility 
where  the  future  interest  is  limited  on  such  events  that  it  may 
take  effect  either  as  a  remainder  or  as  a  shifting  interest  cut- 
ting" short  a  prior  vested  remainder  in  fee:  In  all  the  cases 
where  the  rule  of  destructibility  of  contingent  remainders  has 
been  applied,  the  future  interest  which  was  destroyed  has  been 
so  limited  that,  if  no  rule  of  destructibility  existed  and  the 
event  happened  after  the  termination  of  the  preceding  estate 
of  freehold,  there  would  be  a  gap  in  the  estates  expressly 
limited,  and  the  future  interest,  if  it  took  effect,  would  have 
cut  short  a  reversion  in  fee  in  possession.  It  should  be  ob- 
served that  precisely  the  same  situation  may  be  presented  except 
that  the  future  interest,  if  it  took  effect,  would  cut  short  a 
vested  remainder  expressly  limited  which  might  have  come  into 
possession.  Thus,  suppose  the  limitations  are  to  A  for  life, 
remainder  to  A's  children  (now  unborn),  but  if  A  leaves  no 
children  who  shall  reach  twenty-one  then  to  B  in  fee.  Here  B's 
interest  may  take  effect  as  a  remainder.  This  occurs  if  A  dies 
leaving  no  children.  The  possibility  that  B's  interest  may  take 
effect  as  a  remainder  continues  as  long  as  A  has  no  children. 
On  the  other  band,  the  moment  a  child  is  born  to  A  it  takes 
a  vested  remainder  and  B's  interest  then  takes  effect,  if  at  all, 
as  a  shifting  future  interest.  If  it  is  a  corollary  of  the  rule  of 
destructibility,  or  a  part  of  it,  or  the  rule  itself,  that  future 
interests  which  may  by  possibility  take  effect  as  remainders, 
must  do  so  or  fail  entirely  and  cannot  be  turned  into  executory 

58  24  Ch.  D.  633. 

100 


Ch.  IV J     REVERSIONS    AND    REMAINDERS — LATER    HISTORY  [§  105 

interests  by  events  happening  after  the  creation  of  the  limita- 
tions, then  B's  interest  fails  as  soon  as  a  child  is  born  to  A." 
It  cannot  be  doubted  that  under  the  strictly  feudal  land  law 
B's  interest  would  be  destroyed  on  the  birth  of  a  child  to  A. 
It  is  equally  clear  that  when  springing  and  shifting  uses  and 
devises  became  valid  and  indestructible  the  application  of  such 
a  rule  of  destructibility  was  illogical  and  incongruous.  It 
continued  only  because  it  had  been  established.  But  Lechmere 
and  Lloyd's  case  and  those  following  it^^  ^how  that  in  these 
days  the  courts  regard  themselves  as-  fully  authorized  to  refuse 
to  extend  the  rule  of  destructibility  beyond  the  precise  cases 
where  its  application  has  become  settled,  and  that  any  feature 
of  the  remainder  which  gives  it  a  novelty  sufficient  to  enable  the 
court  to  say  that  its  destructibility  has  never  been  passed  upon 
is  a  valid  ground  for  holding  that  the  rule  of  destructibility 
shall  not  be  applied  to  it.  The  result  reached  in  Doe  d.  Evers 
V.  Challis  ^»  might  have  gone  on  the  ground  that  the  remainder 
to  B  in  the  case  put  was  subject  to  the  rule  of  destructibility 
and  could  not  therefore  be  void  for  remoteness.  It  is  significant 
that  the  court  refused  to  put  its  decision  on  that  ground  and 
insisted  that  the  contingencies  might  be  split  by  operation  of 
law.  On  the  contingency  that  A  had  no  children  B's  interest 
was  a  contingent  remainder  and  must  vest  if  at  all  on  A's 
death.  In  the  event  that  A  had  children  but  they  died  under 
twenty-two,  B\s  interest  was  a  shifting  executory  devise  and 
void  for  remoteness.  The  testator  did  not  split  the  contingencies 
by  his  words.  They  were  split  by  the  court,  by  operation  of 
law,  because  in  one  event  the  future  interest  was  a  remainder 
and  in  the  other  it  was  an  executory  devise.  This  splitting  of 
the  contingencies  by  operation  of  law  is  in  fact  a  refusal  to 
apply  the  rule  of  destructibility  to  B's  interest  so  that  it  would 
fail  the  moment  the  remainder  vested  in  a  child  of  .1.  Such, 
it  is  submitted,  was  a  proper  result  for  the  House  of  Lords  to 
reach,  and  the  decision  of  Jessel,  M.  R.,  in  Lechmere  and  Lloyd's 
case  proceeds  upon  the  application  of  the  same  principle, 
namely,  that  the  rule  of  destructibility  will  not  in  these  days 

5T  See  Gray,  Rule  Against  Perpe-  2ncl  ed.  082;  Kales'  Cases  on  Future 

tuities,  §338,  note  3;  Doe  d.  Evers  Interests,  1059. 
V.  Challis,  18  Q.  B.  224,  231;   7  H.  5S  Ante,  §102. 

L.  C.  531;  5  Gray's  Cases  on  Prop.,  59  ig  Q.  B.  224;   7  H.  L.  C.  531. 

101 


§  106]        IIsTRODUCTlON    TO    THE   LAW    OP^    REAL   PROPERTY    [Ch,  IV 

be  permitted  to  apply  to  any  remainders  presenting  distinctive 
features  unless  authority  or  long-  practice  requires  it. 

5;  106.  Abolition  of  the  rule  of  destructibility  by  legislation : 
In  the  absence  of  any  legislation  abolishing  the  rule  of  de- 
structibility even  American  courts,  where  the  survival  of  feudal 
principles  might  be  regarded  as  least  likely  to  occur,  have 
regularly  recognized  and  applied  the  rule  of  destructibility  of 
contingent  remainders.'^'*  During  the  nineteenth  century 
statutes  both  in  England  and  the  United  States  have  under- 
taken to  abolish  wholly  or  in  part  the  rule  of  destructibility. 

The  Real  Property  Act  of  1845  ^^  provided  that  any  con- 
tingent remainder  existing  after  1844  should  be  capable  of 
taking  effect  "notwithstanding  the  determination  by  forfeiture, 
surrender,  or  merger,  of  any  preceding  estate  of  freehold,  in 
the  same  manner  in  all  respects,  as  if  such  determination  had 


6"  1st:  Cases  where  the  destruction 
of  contingent  remainders  was  held 
to  have  occurred:  District  of  Co- 
lumbia: Craig  V.  Warner,  16  D.  C. 
(5  Mack.)  460.  Mississippi:  Irvine 
V.  Newlin,  63  Miss.  192.  South 
Carolina:  Eedfern  v.  Middleton, 
Kice  L.  (S.  C.)  459;  Faber  v.  Po- 
lice, 10  S.  C.  376;  McElwee  v. 
Wheeler,  10  S.  C.  392.  Pennsylva- 
nia: Lyle  V.  Richards,  9  Serg.  &  R. 
(Pa.)  322;  Abbott  v.  Jenkins,  10 
Serg.  &  R.  (Pa.)  296;  Stump  v. 
Findlay,  2  Rawle  (Pa.)  168;  Ben- 
nett V.  Morris,  5  Rawle  (Pa.)  9, 
15;  Waddell  v.  Rattew,  5  Rawle 
(Pa.)  231.  Dunwoodie  v.  Reed,  3 
Serg.  &  R.  (Pa.)  435,  is  only  contra 
to  the  extent  of  maintaining  that 
a  common  recovery  by  the  holder 
of  the  particular  estate  does  not  bar 
the  contingent  remainder.  Upon  this 
point  it  was  clearly  overruled.  Illi- 
nois: Bond  V.  Moore,  236  111.  576, 
Kales'  Cases  on  Future  Interests, 
144;  Belding  v.  Parsons,  258  111. 
422;  Barr  v.  Gardner,  259  111.  256; 
Messer  v.  Baldwin,  262  111.  48; 
Smith  V.  Chester,  272  111.  428;  Blakc- 


ley  V.  Mansfield,  274  111.  133;  Ben- 
son V.  Tanner,  276  111.  594.  Iowa: 
Archer  v.   Jacobs,   125   la.   467. 

2nd:  Cases  containing  dicta  rec- 
ognising the  doctrine  hy  which  con- 
tingent remainders  may  be  de- 
stroyed: Kentucky:  Edwards  v. 
Woolf oik's  Adm'r.  56  Ky.  (17  B. 
Mon.)  376.  New  Hampshire:  Den- 
nett V.  Dennett,  40  N.  H.  498.  Illi- 
nois: Madison  v.  Larmon,  170  lU. 
65.  See  also  Young  v.  Harkleroad, 
166  111.  318,  and  Spencer  v.  Spruell, 
196  111.  119. 

Haywood  v.  Spaulding,  75  N.  H. 
92  (Kales'  Cases  on  Future  Inter- 
ests, 152)  refused  to  apply  the  rule, 
but  only  by  the  subterfuge  of  ap- 
pointing trustees  to  preserve  the 
contingent  remainder. 

Simonds  v.  Simonds,  199  Mass. 
552  (Kales'  Cases  on  Future  Inter- 
ests, 148)  as  already  explained,  ante, 
§  103,  is  a  correct  application  of 
the  reasoning  upon  which  Lechmere 
and  Lloyd's  Case  is  to  be  sustained 
and  a  logical  deduction  from  the 
result  reached  in  that  case. 

01  8-9  Vic.  c.  106,  sec.  8. 


102 


Ch.  IV]     REVERSIONS    AND    REMAINDERS — LATER    HISTORY  [^  \()G 

not  happened."  This  act,  however,  failed  to  provide  for  the 
ease  where  the  preceding  estate  of  freehold  terminated  from 
causes  other  than  those  mentioned.  A  contingent  remainder 
was,  therefore,  still  liable  to  be  defeated  by  the  death  of  the  life 
tenant  before  the  contingency  had  happened.  Jn  1877  another 
contingent  remainder  act  «^  was  passed  which  applied  only  to 
contingent  remainders  created  by  an  instrument  executed  after 
August  2,  1877,  and  provided  that  every  contingent  remainder 
"which  would  have  been  valid  as  a  springing  or  shifting  use 
or  executory  devise  or  other  limitation  had  it  not  had  a  sufiS- 
cient  estate  to  support  it  as  a  contingent  remainder,  shall,  in 
the  event  of  a  particular  estate  determining  before  the  con- 
tingent remainder  vests  be  capable  of  taking  effect  in  all  re- 
spects as  if  the  contingent  remainder  had  originally  been  created 
as  a  springing  or  shifting  use  or  executory  devise  or  other 
executory  limitation."  A  doubt  has  long  existed,  and  still  re- 
mains, whether  the  act  of  1877  applied  where  the  remainder 
was  to  the  children  of  a  life  tenant  who  reached  twenty-one 
and  one  child  had  reached  tAventy-one  before  the  termination 
of  a  life  estate  and  others  were  in  esse  who  might  do  so  after- 
wards.«=^  It  has  been  suggested  •**  that  a  simple  and  compre- 
hensive form  of  contingent  remainders  act  might  be  worded 
as  follows:  '"No  remainder  or  other  interest  shall  be  defeated 
by  the  determination  of  the  precedent  estate  or  interest  prior 
to  the  happening  of  the  event  or  contingency  on  Avhich  the  re- 
mainder or  expectant  interest  is  limited  to  take  effect."  This, 
however,  fails  to  cover  the  case  mentioned,  ante  §  105.  To  do  so 
we  might  add  to  it  the  following:  "and  any  rule  which  requires 
a  future  interest  which  by  pos.sibility  may  take  effect  as  a  re- 
mainder to  do  so  or  fail  entirely  is  hereby  abolished,""" 

"2  40-41  Vic.  c.  33.  ders  Act  are  given  in  Washburn  ou 

«3  Williams   on    Seisin,    205;    Jar-  Real  Property    (6th  ed.)    sec.   1600, 

man   on  Wills    (6th   ed.  by   Sweet),  note,    as    follows:    Ala.,    Ga.,    Ind., 

1445;    Vaizey,   Law  of   Settlements,  Ky.,  Mich.,  Minn.,  Mont.,  N.  Y.,  N. 

1164,  1165.     The  point  was  left  un-  Dak.,   Va.,   W.    Va.,   Wis.      To   this 

decided  in  In  re  Robson,   [1916]    1  should  now  be  added  Massachusetts. 

Ch.  116.  In   some   states   the   act   which    is 

«•*  Kales'   Cases   on   Future  Inter-  now  in  force,  or  has  existed,  has  a 

ests,  155.  partial  effect  only,  like  the  English 

05  The  only   states  which   seem   to  Act  of  1845.    Maine:   Rev.  St.  1871, 

have  a  complete  Contingent  Remain-  ch.  73,  sec.  5.     Massachusetts:   Rev. 

103 


106]        INTRODUCTION    TO    THE   LAW    OF    REAL    PROPERTY    [Ch.  IV 


Laws  1902,  p.  1268,  sec.  8.  The  acts 
in  both  these  states  antedate  the 
English  Contingent  Eemainders  Act 
of  1845.  The  Massachusetts  act  ap- 
pears in  Rev.  St.  1836,  ch.  59,  sec.  7; 
the  Maine  act  in  Rev,  St.  1841,  ch. 
91,  see.  10. 

In  South  Carolina  (1  Rev.  St. 
1893,  ch.  66;  1  Code  of  Laws  1902, 
sec.  2465)  the  act  goes  no  farther 
than    to   provide   that   a   contingent 


remainder  shall  not  be  "defeated 
by  feoffment  with  livery  of  seisin. ' ' 
In  Texas  the  statute  goes  no  far- 
ther than  to  provide  that  the  re- 
mainder shall  not  be  defeated  by  the 
alienation  of  the  particular  estate, 
either  by  deed  or  will,  or-  by  the 
union  of  such  particular  estate  with 
the  inheritance  by  purchase  or  de- 
scent. Battis'  Ann.  Civ.  St.  1897, 
see.  626. 


104 


CHAPTER  V. 

ESTATES  AND  FUTURE  INTERESTS  IN  PERSONAL 
PROPERTY. 

§107.  Chattels  personal— English  law:  Prior  to  the  be- 
ginning of  the  seventeenth  eentury  it  is  probable  that  no  in- 
terest, other  than  an  absolute  and  indefeasible  one,  could  be 
created  in  a  chattel  personal.  In  the  seventeenth  century  the 
distinction  was  taken  that  if  the  ^lse  of  a  chattel  were  given 
by  will  to  A  for  life,  the  property  or  absolute  interest  might 
be  limited  to  B  after  A's  death.i  By  the  end  of  the  seventeenth 
eentury  it  became  settled  that  a  bequest  to  A  for  life  and  then 
to  B  absolutely,  gave  B  a  valid  future  interest  at  law.^  By  a 
deed  or  act  of  transfer  inter  vivos,  no  future  interest  could 
however  be  created  in  a  chattel  personal  in  England.  This 
seems  to  be  the  law  at  the  present  day,  though  the  reason  for 
it  is  not  apparent. 

The  nature  of  the  future  interest  when  it  is  validly  created 
by  will  is  in  some  doubt.  It  is  clear  that  it  is  a  valid  legal 
interest  recognized  and  protected  by  courts  of  law  as  distin- 
guished from  courts  of  equity.^  But  is  it  like  a  remainder 
after  a  limited  estate  for  life,  or  is  the  interest  in  the  life  tenant 
an  absolute  interest  in  the  property,  which  comes  to  an  end 
only  when  A's  life  terminates?  If  the  latter  view  be  taken, 
then  the  gift  to  B  is  a  shifting  interest.  The  English  cases 
seem  to  adopt  this  view.* 

1  Anonymous,  March,  106,  pi.  183  ker,  2  Term  R.  376  (1788);  5 
(1641);  5  Gray's  Cases  on  Prop.,  Gray's  Cases  on  Prop.,  2nd  ed.  123; 
2nd  ed.  118;  Kales'  Cases  on  Future  Kales'  Cases  on  Future  Interests, 
Interests,  344;   Vaehel  v.  Vachel,  1  347. 

Ch.  Cas.  129    (1669);  Kales'  Cases  s  Hoare  r.  Parker,  supra. 

on  Future  Interests,  345.  *  In     re     Tritton,     6     Morrell's 

2  Hide  V.  Parrat,  2  Vern.  331  Bankcy.  Cas.  250;  5  Gray's  Cases 
(1696);  5  Gray's  Cases  on  Prop.,  on  Prop.,  2nd  ed.  124;  Kales'  Cases 
2nd  ed.   118;    Kales'   Cases  on  Fu-  on  Future  Interests,  349. 

ture  Interests,   346;    Hoare   v.  Par- 

105 


§  108  J         INTRODUCTION    TO   THE   LAW    OF    RE.VL   PROPERTY      [CH.  V 

§108.  The  American  cases:  In  the  United  States  the 
courts  go  farther  than  in  England  in  permitting  future  in- 
terests in  chattels  personal.  Except,  perhaps,  in  North  Caro- 
lina,5  the  future  interest  may  be  created  by  a  transfer  inter 
vivos  ^  or  by  deed "  as  well  as  by  will,  and  it  makes  no  differ- 
ence whether  the  first  taker  has  a  life  estate  with  a  gift  over 
on  his  death,^  or  an  absolute  interest,  subject  to  a  gift  over  to 
another  absolutely  upon  a  specified  contingency,  as  for  instance, 
if  the  first  taker  dies  without  issue  him  surviving.^ 

It  may  be  assumed  also  that  the  American  cases  incline  to 
the  older  view  of  the  English  cases,  that  when  the  first  taker 
is  given  only  a  life  estate  the  first  taker  has  only  the  use  and 
occupancy  for  life,  so  that  a  limited  estate  is  created  and  the 
future  interest  takes  effect  like  a  vested  remainder  in  real 
estate  after  a  life  estate,  or,  if  no  such  future  interest  is  limited, 
there  will  be  a  reversionary  interest  to  the  creator  of  the  life 
estate.io 

§109.  Chattels  real:  Prior  to  the  seventeenth  century  it 
is  probable  that  future  interests  in  chattels  real  were  not  at- 
tempted or  were  invalid.  But  early  in  the  seventeenth  century 
it  was  held  that  when  a  leasehold  interest  was  limited  by  will 
to  A  for  life,  and  then  to  B,  B's  interest  was  valid.^^  A  little 
later,  it  was  held  that  if  the  future  interest  limited  by  will  in 
chattels  real  were  contingent,  as  to  A's  unborn  son,  it  was 
valid.^-  In  1618,  however,  it  was  held  that  a  gift  over  of  a 
term  to  B,  if  the  first  taker  (to  whom  an  absolute  interest  in 
the  term  was  expressly  limited)    died  without  issue  him  sur- 

•^Gray,    Rule    Against    Perpetui-  C.)   161   (1802);  5  Gray's  Cases  on 

ties,  §§92-94.  Prop.,  2ncl  ed.  125;  Kales'  Cases  on 

6McCall    V.    Lee,    120    111.    261;  Future  Interests,  350;  Boyd  v.  Stra- 

Brummet  v.  Barber,  2  Hill  543    (S.  han,   36  111.    355.      Contra,  State   v. 

C);   5  Gray's  Cases  on  Prop.,  2nd  Savin,    4    Harr.     (Del.)     56,    note; 

ed.  129;  Kales'  Cases  on  Future  In-  Merkel's  Appeal,  109  Pa.  235. 

terests    354.  n  Manning's     Case,     8     Co.     94b 

TDuke   V.    Dyches,    2    Strob.    Eq.  (1609);    5  Gray's   Cases   on  Prop., 

(S.  C.)    3.53,  note;    5  Gray's  Cases  2nd  ed.   112;   Kales'   Cases  on  Fu- 

on     Prop.,     2nd     ed.     126;     Kales'  ture  Interests,  316. 

Cases  on  Future  Interests,  351.  12  Cotton  v.   Heath,    1   Roll.   Abr. 

» -Duke  V.  Dyches,  supra.  612,  pi.  3    (1638);    5  Gray's  Cases 

9Brummet  v.  Barber,  supra.  on  Prop.,  2nd  ed.  117;   Kales'  Cases 

!«  Anonymous,  2   Hayward    (3  N.  on  Future  Interests,  324. 

106 


Ch.V]        future  interests  in  personal  property  [§109 

viving,  was  void.'-'  Tlius  the  English  judges  started  to  draw 
a  distinetion  between  future  interests  in  chattels  real  after  a 
life  interest  expressly  limited  and  after  an  absolute  interest 
expressly  limited.  But  this  was  put  an  end  to  in  the  Duke  of 
Norfolk's  Case  '^  in  1682.  Thereafter  future  interests  in  chattels 
real  could  be  freely  created  by  will  subject  only  to  the  rule 
against  remoteness  which  was  first  definitely  suggested  in  the 
Duke  of  Norfolk's  Case.'-' 

The  theory  of  the  English  cases  seems  to  have  l)eeii  that  the 
first  taker,  even  when  given  only  a  life  estate,  had  an  absolute 
interest  in  the  chattel  real,  subject  to  a  shifting  gift  over  upon 
his  death,  which  was  like  a  shifting  executory  devise  of  real 
estate.'"  This  theory  was  adhered  to  even  when  a  life  estate 
in  the  chattel  real  was  limited  to  A,  and  nothing  further  was 
said.'"  The  position  was  then  taken  that  A\h  absolute  interest 
came  to  an  end  at  A's  death,  and  thereupon  there  was  a  re- 
verter, like  a  reverter  of  real  estate  when  a  determinable  fee 
came  to  an  end.  The  logical  basis  for  the  theory  that  A  had 
an  absolute  interest  in  a  chattel  real  where  it  was  limited  to 
him  only  for  life,  rested  upon  the  feudal  notion  that  every  life 
estate  was  in  law  longer  than  any  term  for  years.  Hence  a 
life  estate  in  a  term  for  years  mnst  always  include  the  entire 

tenn. 

The  English  law  apparently  does  not  permit  any  future  in- 
terest in  a  chattel  real  to  be  created  by  deed,  or  other  mode  of 
transfer  inter  rn-os.'^  Precisely  why  is  not  perceived.  It  may 
be  assumed  that  in  most  of  the  states  in  this  country  future 
interests  in  chattels  real  could  be  created  by  deed,  or  convey- 
ance inter  vivos  as  well  as  by  will.  This,  it  is  believed,  is  a 
sound  inference  from  the  fact  that  future  interests  can,  in  this 
country,  be  created  by  deed  or  other  mode  of  transfer  inter 
vivos  in  a  chattel  personal.''* 

13  Child   V.   Baylie,  Cro.   Jac.  459  ties,  3rd  ed.   §§  71a,  807  et  seq. 

(1618);    5   Gray's  Cases  on   Prop.,  i"  Eyres  v.  Faulkland,  1  Salk.  2:;l 

2nd    ed.  425;   Kales'  Cases  on  Fu-  (1697);    5   Gray's  Cases   on   Prop., 

ture  Interests,  321.  2nd  ed.  119;    Kales'   Cases  on  Fu- 

1*3   Ch.    Cas.   1;    5   Gray's  Cases  ture  Interests,  341. 

on  Prop.,  2nd  ed.  428;  Kales'  Cases  is  Gray,    Kule    Against    Perpetui- 

on  Future  Interests,  324.  ties,  3rd  ed.  §  853  G. 

IS  7(7.  ^9  Ante,  §108. 

T' Grav,    Rule    Against     Perpetui- 

107 


§  110]        INTRODUCTION    TO   THE   LAW    OF    REAL   PROPERTY      [Ch.  V 

§110.  No  doctrine  of  destructibility :  The  rule  of  de- 
structibility  of  contingent  remainders  never  had  any  applica- 
tion to  personal  property.  Hence  the  reason  which  that  rule 
furnished  for  distinguishing  between  vested  and  contingent  re- 
mainders does  not  exist  where  personal  property  was  involved. 
The  future  interest  in  personal  property  was  either  valid  or 
invalid.  If  it  was  valid  it  took  effect  according  to  the  expressed 
intent. 

§  111.  The  Rule  in  Shelley's  Case  had  no  application  to  per- 
sonal property:  The  English  authorities  have  now  made  it 
clear  that  the  Rule  in  Shelley's  Case  does  not  apply  to  per- 
sonalty. ^^  On  the  contrary  a  bequest  of  personal  property  to  A 
for  life  and  then  to  A's  heirs  is  to  be  considered  as  creating  such 
interests  as  the  expressed  intent  of  the  testator  calls  for.  It  is 
believed  that  a  number  of  jurisdictions  in  this  country  have 
adopted  the  same  rule.-i  On  principle  this  is  correct.  When 
one  turns  to  the  feudal  origin,  and  the  conjectured  feudal  neces- 
sity and  feudal  reasons  supporting  the  Rule  in  Shelley's  Case,^~ 
it  is  apparent  that  they  have  no  possible  application  to  interests 
in  personal  property. 

§  112.  Created  by  means  of  trust :  If  the  legal  title  to  a 
chattel  real  or  to  any  other  form  of  personal  property  be  placed 
in  a  trustee,  the  utmost  freedom  was  allowed  in  the  creation  of 
the  future  equitable  interests.  It  made  no  difference  whether 
the  trust  was  created  by  a  conveyance  to  a  trustee  inter  vivos, 
or  by  will.22 

20  Post,  §  436.  23  Gray,    Rule    Against    Perpetui- 

21  Id.  ties,  §§75,  87. 

22  Ante,  §35. 


108 


CHAPTER  VI. 

THE  RULE  AGAINST  PERPETUITIES. 

§  113.  The  necessity  for  a  rule  limiting-  the  lengfth  of  time 
in  the  future,  at  which  future  interests  could  be  desig-nated  to 
take  effect,  became  apparent  in  the  seventeenth  century:     h 

Nvas  (luring  tlii'  seventeenth  century  that  tlio  new  freedom   in 
creating  future  interests  was  realized.     In  1609  it  was  estab- 
lished that  legal  future  interests  in  chattels  real  could  be  created 
by  will,'  and  the  reported  cases  during  the  balance  of  the  cen- 
tiiry  sh'ow  that  the  use  of  long  term  leases  became  a  popular 
form  of  property,  and  their  limitation  by  wills  creating  future 
interests  in  them  naturally  followed.     In  1620  it  was  established 
that  shifting  future  interests  in  real  property  could  he  created 
and  that  the  same  were  not  only  valid  but  indestructible.-     It 
followed  that  springing  future  interests  in  land  were  valid  and 
indestructihle  when  created  by  Avill.     It  followed  also  that  both 
springing  and   shifting   future  intei-ests  were  valid  and  inde- 
structible when  created  by  way  of  use.     Trusts  of  land  and  of 
personal  property  began  to  appear  and  to  be  enforced  by  the 
court  of  chancery.     With  regard  to  them  the  utmost  freedom 
in  the  creating  of  future  interests  prevailed.     In  1696  it  was 
settled  that  a  legal  future  interest  after  a  life  estate  in  a  chattel 
personal  could  be  created  by  will.-"' 

In  the  seventeenth  century,  and  especially  toward  its  end.  it 
became  apparent  that  some  limits  must  be  placed  upon  this  new 
power  to  create  future  interests.  The  owner  of  property  eoukl 
not  be  permitted  to  direct  the  course  of  the  beneficial  ownership 
throughout  succeeding  generations.  The  courts,  however,  did 
not  refer  the  matter  to  parliament— or  wait  for  parliament  to 
act.  Thev  laid  the  foundation  for  the  rule  themselves,  in  the 
seventeenth  century,  and  developed  it  to  completion  in  the  nine- 
teenth centurv.  The  rtile  so  wrought  out  by  the  courts  is  called 
the  Rule  against  Perpetuities,  or  the  rule  against  remoteness. 

ijnfe,  §109.  ^'^^'^  §107. 

2  Ante,  §  85. 

109 


;:;  114J   INTRODUCTION  TO  THE  LAW  OF  REAL  PROPERTY  [Ch.  VI 

It  is  one  of  tlie  most  striking  instances  of  a  purely  judge-made 
rule  of  law  of  comparatively  modern  origin. 

§  114.  Manning's  Case  and  Child  v,  Baylie:  In  Manning's 
Case  in  1609  ^  it  was  settled  that  a  chattel  real  might  be  limited 
to  A  for  life,  then  to  B,  and  that  B's  interest  was  valid.  In  Child 
V.  Baylie  in  1618  "^  it  was  held  that  //  a  chattel  real  were 
limited  to  A  absolutely  but  if  he  leaves  no  issue  him  surviv- 
ing, to  B  absolutely,  the  limitation  to  B  was  void.  In  both 
cases  alike  the  future  interest  was  bound  to  take  effect  at  the 
end  of  a  life  in  being.  The  results  reached  indicate  that  the 
courts  were  attempting  to  make  an  arbitrary  distinction  de- 
pendent upon  the  manner  in  which  the  future  interest  was 
expressly  limited.  Nothing  like  the  modern  rule  against  re- 
moteness was  suggested. 

§  115.  Duke  of  Norfolk's  Case  (1682) :  «  Here  a  future  in- 
terest in  a  chattel  real  like  that  held  void  in  Child  v.  Baijlie ' 
was  held  valid  because  it  was  certain  to  take  effecit  at  the  end  of 
a  life  in  being  at  the  creation  of  the  interests.  This  established 
the  rule  that  future  interests  which  were  certain  to  take  etfect 
at  the  end  of  a  life  in  being  were  valid.  It  equally  suggested 
that  future  interests  which  might  not  take  effect  at  some  time 
(not  yet  determined)  after  a  life  in  being,  would  be  void. 

§  116.  Subsequent  leading  cases  completing  the  statement 
of  the  rule  against  perpetuities:  In  Lloijd  v.  Careiv  «  (1697), 
there  was  a  conveyance  to  A  and  his  wife  for  life ;  remainder  to 
her  children  successively  in  tail;  remainder  to  A  in  fee,  pro- 
vided that  if  at  the  death  of  the  survivor  of  A  and  his  wife, 
there  should  be  no  issue  of  theirs  then  living,  and  if  the  heirs 
of  the  wife  should,  within  twelve  months  after  such  death  with- 
out issue,  pay  to  the  heirs  of  A  £4,000,  then  the  estate  should  go 
to  the  heirs  of  the  wife  forever.  A  and  his  wife  both  died  with- 
out leaving  issue  living  at  the  death  of  the  survivor.  The  heir 
of  the  wife  tendered  the  £4,000.  It  was  held  in  the  House  of 
Lords  that  the  executory  devise  over  was  valid.    This  case  estab- 

4  8   Co.   94b;    5   Gray's   Cases   on       on  Prop.,  2nd  ed.  428;  Kales'  Cases 
Prop.,  2nd  ed.  112;  Kales'  Cases  on       on  Future  Interests,  324. 
Future  Interests,  316.  ^  Ante,  §  114. 

5Cro.   Jac.   459;    5   Gray's   Cases  «  Show.  P.  C.  137;  5  Gray's  Cases 

on  Prop.,  2nd  ed.  425;  Kales'  Cases       on  Prop.,  2nd  ed.  445;  Kales'  Cases 
on  Future  Interests,  321.  on  Future  Interests,  858. 

6  3    Ch.    Cas.    1 ;    5    Gray 's   Cases 

110 


Ch.  VI]  Kt'LK    AGAINST    PERPETI'ITIES  f§  117 

lisiicd  llie  proposition  that  the  future  interest  will  be  valid 
although  it  is  not  to  take  effect  until  some  period  of  time  in 
gross  after  the  termination  of  some  lives  in  being.  Here  the 
period  of  time  in  gross  was  one  year. 

In  Stephens  v.  Stephens  "  it  was  held  that  an  exe<-utory  devise 
to  the  child  of  a  person  living  at  the  testator's  death  on  such 
child  reaching  twenty-one  was  valid. 

In  Thellusson  v.  Woodford,^*^  it  was  settled  that  in  fixing  the 
time  when  the  future  interest  should  take  effect  as  the  termina- 
tion of  lives  in  being  when  the  interests  were  created,  it  was 
l)roper  to  take  the  lives  of  persons  who  were  entirely  uncon- 
nected with  the  beneficial  interests  in  the  trust  estate. 

In  Cadell  v.  Palmer  'i  it  was  held  by  the  House  of  Lords  that 
where  the  future  interest  did  not  take  effect  in  possession  until 
the  end  of  a  period  of  twenty-one  years  in  gross  after  lives  in 
being,  it  was  still  valid.  This  case  fixed  the  limit  of  time  within 
Avhich  the  future  interest  might  take  effect  and  still  be  valid. 
As  the  law  stood  after  that  case  the  future  interest  was  valid 
if  it  was  certain  to  take  effect,  if  at  all,  in  possession  within  lives 
in  being  and  twenty-one  years  after  the  date  of  the  creation  of 
the  interests. 

i5 117.  In  determining-  when  a  freehold  interest  took  effect  in 
possession  resort  was  had  to  certain  purely  feudal  conceptions : 
Thus  a  non-contingent  freehold  after  a  term  was.  from  the  feudal 
point  of  vieAv,  a  present  freehold  in  possession. *2  rpj^^  ^^^^ 
holder  was  seized.  Hence  the  Rule  as  formulated  was  not 
violated,  no  matter  how  long  the  term  might  be.  The  freehold 
was  valid,  regardless  of  the  length  of  the  term,  before  the  Rule 
against  Perpetuities  existed.  Hence  it  Avas  most  natural  that 
the  Rule  should  be  so  formulated  as  not  to  make  invalid  that 
Avhich  before  had  been  valid.  Thus  did  the  feudal  position  of 
a  freehold  after  a  term  survive  to  determine  the  application  of 
the  Rule  against  Perpetuities. 

9Cas.  temp.  Talb.  228   (1736);  5  n  i     ci.    &    F.    372     (1833);     5 

Gray's  Cases  on  Prop.,  2nd  ed.  452;  Gray's  Cases  on  Prop.,  2nd  ed.  482; 
Kales'  Cases  on  Future  Interests,  Kales'  Cases  on  Future  Interests, 
863.  898. 

i»4  Ves.  227  (1799),  11  Ves.  112  ^'^  Ante,  §32. 

(1805);  5  Gray's  Cases  on  Prop., 
2nd  cd.  460 ;  Kales '  Cases  on  Future 
Interests,  871. 

Ill 


§  118]        INTRODUCTION    TO    THE   LAW    OF   REAL   PROPERTY    [Ch.  VI 

Suppose  the  freehold  after  the  term  be  contingent  on  an  event 
which  must  happen,  if  at  all,  within  lives  in  being  and  twenty- 
one  years  from  the  creation  of  the  interests;  and  suppose  it  be 
aUowable  as  a  springing  use  or  executory  devise. ^"^     It  will  be 
valid  so  far  as  the  Rule  against  Perpetuities  is  concerned  be- 
cause   wlien    tlie    event    happens    the    freehold    becomes    non- 
contingent  and  the  holder  is  then  seized  and  in  possession  subject 
to  the  term,  and  it  makes  no  difference  how  long  the  term  may  be. 
§  118.    It  was  enougfh  if  the  future  interest  vested  in  interest 
(85  distinguished  from  taking-  effect  in  possession)  within  the 
required  time :     A  future  interest  might  not  take  effect  in  pos- 
session in  either  a  modern  or  a  feudal  sense  within  the  time 
specified  by  the  Rule  against  Perpetuities,  and  yet  it  might  'West 
in  interest"  within  such  time.     Thus,  if  the  limitations  were  to 
A  for  life,  remainder  to  the  eldest  son  (unborn)  of  A  for  life, 
remainder  to  B  and  his  heirs  if  he  survive  A,  B's  remainder 
would  vest  in  interest  at  A's  death,  but  it  might  not  come  into 
possession  till  the  death  of  an  unborn  person.    So  if  the  limita- 
tions were  to  A  for  life,  remainder  to  the  eldest  son  (unborn)  of 
A  for  life,  remainder  to  B  and  his  heirs,  B's  remainder  is  vested 
at  once,  but  may  not  come  into  possession  till  after  lives  in  being 
and  twenty-one  years.    B's  remainder  in  both  cases  is  valid  be- 
cause the  Rule  against  Perpetuities  only  required  that  the  future 
interest   vest    in   interest   in   the   required   time.     This   was  a 
natural  development  because  otherwise  remainders  which,  before 
the  Rule  was  known,  would  have  been  valid,  would  suddenly 
have  been  made  void. 

The  conception  of  vesting  m  interest  is  the  same  as  the  feudal 
conception  of  a  vested  remainder  after  a  particular  estate  of 
freehold.  Thus,  a  future  interest  vests  in  interest  when  it 
stands  ready,  throughout  its  continuance,  to  take  eft'ect  in  pos- 
session whenever  and  however  the  preceding  estate  of  freehold 
(or  estate  analagous  thereto)  terminates. 

Under  the  feudal  law  the  determination  of  wliether  a  remain- 
der was  vested  or  not  had  reference  to  its  validity  and  alienabil- 
ity under  that  law.  It  was  a  relevant  inquiry  only  when  a  legal 
remainder  after  a  particular  estate  of  freehold  was  concerned. 
But  when  the  Rule  against  Perpetuities  took  over  this  concep- 

isAnte,  §§80,  85. 

112 


Ch.  VIj  HLLE   AGAINST    PERPETUITIES  [§119 

tion  of  vesting,  as  iiidicatiiij^  the  condition  into  wiiidi  the  future 
interest  must  come  within  liv<'s  in  bein^^  and  twenty-one  years 
from  the  time  of  llie  ci-eation  of  tlie  interests,  it  was  applied 
indiserimiiialely  to  all  future  iutcresis  in  pvopcrttj.  Tims  it  was 
applied  to  ('(piitahle  future  interests  in  land  and  to  interests  in 
personal  property,"  whether  lejral  or  e(|uital)le.  It  may  be  that 
the  feudal  distinction  between  vested  and  continjrciit  i-cniainders 
is  no  loiijyfcr  of  much  account  in  determining  the  validity  or  alien- 
ability of  the  remainder,  oi-  the  api)lication  of  the  doctrine  of 
destructibility  because  of  modei-n  statutes  nmking  contingent 
remainders  i)idesti-uctil)le  and  alieiud)le.  But  the  feudal  dis- 
tinction between  ^vhat  future  interests  are  vested  remainders 
according  to  the  feudal  law  and  what  are  not,  lives  and  is  of 
importance  in  determining  whether  futui-e  interests  in  real  or 
personal  property,  and  whether  legal  or  equitable,  offend 
against  the  Rule  against  Perpetuities. 

§  119.  Statement  of  the  Rule:  Professor  Gray  thus  states 
the  Rule  against  Perpetuities:  '•"'  "No  interest  is  good  unless 
it  muiit  vest,  if  at  all,  not  later  than  twenty-one  years  after  some 
life  in  being  at  the  creation  of  the  interest."  .    . 

If  the  difficult  word  "vest"  be  eliminated  by  incorporating 
into  the  Rule  what  is  meant  by  "vest"  the  Rule  Avould  read 
something  like  this :  No  interest  is  good  unless  it  must  come 
into  possession,  if  at  all,  not  later  than  twenty-one  years  after 
some  life  in  being  at  the  creation  of  the  interest ;  except  that  if 
the  interest,  whether  in  real  or  personal  property,  or  by  way  of 
equitable  interest  in  real  or  personal  property,  must,  if  at  all, 
not  later  than  twenty-one  years  after  some  life  in  being  at  the 
creation  of  the  interest,  stand  ready  throughout  its  continuance 
to  come  into  immediate  possession,  whenever  and  however  a 
preceding  estate  which,  if  a  legal  interest  in  land,  would  have 
been  a  particular  estate  of  freehold,  determines,  it  is  valid. 

To  avoid  the  clumsiness  of  this  formula  three  propositions 
may  be  stated : 

(1)  All  interests  which  are  sure  to  take  effect  in  possession, 
if  at  all,  not  later  than  twenty-one  years  after  some  life  in  being 

"  Evans  v.  Walker,  8  Ch.  Div.  211  i"-  Gray,  Rule  against  Perpetuities, 

(1876);    5  Gray's  Cases   on  Prop.,       §201. 
2nd  ed.  493 ;  Kales '  Cases  on  Future 
Interests,  348. 

Kales  Fut.  Inf. — 8  [^^g 


§  120]        INTRODUCTION    TO    THE   LAW    OF    REAL   PROPERTY    [Ch.  VI 

at   the  creation  of  the   interest,  are  so  far  as  the  question  of 
remoteness  is  concerned  valid. 

(2)  Every  interest  which  mnst,  if  at  all,  not  later  than  twenty- 
one  years  after  some  life  in  being  at  the  creation  of  the  interest, 
stand  ready  throughout  its  continuance  to  come  into  possession, 
whenever  and  hoAvever  a  preceding  estate  which,  if  a  legal  inter- 
est in  land,  would  have  been  a  particular  estate  of  freehold, 
determines,  it  is,  so  far  as  the  question  of  remoteness  is  con- 
cerned, valid. 

(3)  Future  interests  not  embraced  in  Ihe  two  preceding 
classes  are  void. 

^  120.  Inaccurate  and  unsatisfactory  statements  of  the  Rule 
against  Perpetuities:  The  Rule  against  Perpetuities  is  often 
stated  as  if  it  were  a  rule  making  void  restraints  on  alienation. 
Thus,  in  Bouvier's  Law  Dictionary,  a  perpetuity  is  defined  to 
be  "Anj'  limitation  tending  to  take  the  subject  of  it  out  of  com- 
merce for  a  longer  period  than  a  life  or  lives  in  being,  and 
twenty-one  years  beyond."  i*^  Such  a  method  of  stating  the 
rule  is  unfortunate,  for  it  mixes  up  the  Rule  against  Perpetui- 
ties with  the  rules  making  void  restraints  on  alienation.  The 
Rule  against  Perpetuities  should  be  carefully  distinguished  at 
all  times  from  the  rules  making  void  restraints  on  alienation. 
Tliere  are  two  different  principles  of  public  policy  involved  and 
each  finds  expression  in  a  different  rule. 

§  121.  Public  policy  behind  the  Rule  against  Perpetuities : 
While  it  is  in  accordance  with  modern  views  that  the  owner  of 
property  may  dispose  of  it  as  he  pleases,  yet  it  is  clearly  in- 
expedient that  he  should  be  allowed  to  dictate  who  shall 
beneficially  enjoy  it  much  beyond  the  limits  of  his  own  personal 
experience.  It  is  fair  that  he  should  designate  who  among 
persons  living  at  his  death  should  enjoy  it,  for  these  he  knows. 
It  is  liberal  to  allow  him  to  designate  who  shall  enjoy  it  at  the 
death  of  persons  living  at  his  death,  although  these  he  may  not 
know;  but  it  would  clearly  be  most  unwise  and  inexpedient  to 
permit  him  to  dictate  the  beneficial  enjoyment  into  the  third 
generation.  This  is  completely  beyond  his  own  experience.  It 
runs  into  a  time  when  other  lives  ought  to  be  allowed  to  dictate 
the  enjoyment  of  the  property.  It  was  to  place  a  limit  upon  the 
power  of  owners  of  property  to  designate  who  in  the  future  shall 

^(iPost,  §  656. 

114 


CpI.  VI]  RULE    AGAINST    PERPETUITIES  f§121 

enjoy  the  beneficial  ownersliip  that  tlie  Rule  against  Perpetui- 
ties was  invented.  It  does  not  seek  directly  to  prevent  restraints 
on  alienation.  It  is  not  guidj^d  in  its  application  by  the  fact  of 
whether  the  fee  is  alienable  or  inalienable.  It  merely  seeks  to 
stop  the  creation  of  future  interests  which  may  take  effect  at  too 
remote  a  time  in  the  future.  It  says  to  the  testator  or  settlor: 
"you  cannot  control  tlie  beneficial  ownership  of  your  property 
beyond  a  certain  time  in  the  future."  The  law  has  developed 
an  entirely  different  set  of  rules  which  undertake  to  make  in- 
valid all  impi-ojier  resti-aiTits  and  forfeitures  on  alienation  as 
such.' ' 

I"  Ante,  S  18;  post,  SS  71 1  et  .vf(/. 


115 


BOOK  II. 

INTERPRETATION  OF  WRITINGS  — MORE 
ESPECIALLY  WILLS. 

CHAPTER  VII. 

THE  THEORY  OF  LEGAL  INTERPRETATION  AND 
AVAILABILITY  OF  EXTRINSIC  EVIDENCE. 

§  122.  Introductory:  In  performing  the  process  of  inter- 
preting writings,  three  steps  preliminary  to  the  practice  of  the 
art  of  interpretation  must  be  taken:  (1)  the  subject  matter  to 
be  interpreted  must  be  precisely  defined;  (2)  the  standard  of 
interpretation  in  the  given  case  must  be  determined;  (3)  the 
sources  from  which  the  tenor  of  that  standard  is  to  be  derived 
must  be  ascertained. 

TITLE  I. 
SUBJECT    MATTER  OF    INTERPRETATION. 

§  123.  Inducement  distinguished  from  legal  act — The  writ- 
ing constituting  the  legal  act  is  the  only  subject  matter  of 
interpretation:  A  testator  or  settlor  in  the  eft'ort  to  express 
himself  has  two  mental  reactions.  He  first  desires  to  accomplish 
a  certain  object  and  to  do  so  may  have  the  will  or  purpose  to 
use  certain  words  according  to  a  given  standard,  such  as  their 
ordinary  and  general  usage.  All  this  is  preliminary,  or  by  way 
of  inducement,  to  his  legal  act  of  using  certain  words  according 
to  some  standard.  Then  comes  the  decisive  step  of  completing 
or  making  final  a  legal  act  in  writing  in  which  certain  words  are 
used  with  reference  to  a  standard  of  meaning. 

If  the  words  of  the  legal  act,  according  to  the  standard  used, 
express  perfectly  the  juirpose  or  object  of  the  inducement,  we 
have  no  occasion  to  consider  whether  the  words  used  or  the 
inducement  is  the  subject  matter  of  interpretation  or  to  dis- 
tinguish between  them  for  any  purpose  of  interpretation.     If, 

117 


§123]  INTERPRETATION    OF   WILLS  [Ch,  VII 

llo^vever,  words  are  missing  from  the  legal  act  or  if  the  wrong 
word  is  used  so  that  what  was  willed  to  be  expressed  is  not,  in 
fact,  expressed,  we  are  at  once  reqiiired  to  choose  between  two 
possible  subjects  matter  of  interpretation — the  object  and  pur- 
pose of  the  inducement  or  the  words  used. 

Conceivably,  of  course,  a  system  of  law  might  exist  where  the 
courts  endeavored  to  give  etfect  to  the  objects  and  purposes  of 
the  inducement  which  were  sought  to  be  expressed  in  the  formal 
act  reduced  to  writing.  In  such  a  system,  the  writing  might  be 
used  merely  as  evidence — no  doubt  often  prima  facie  correct — 
of  the  objects  and  purposes  of  the  inducement  to  the  act.  In 
such  a  system  the  subject  matter  to  be  interpreted  would  be  the 
objects  and  purposes  of  the  inducement  to  the  writing — the 
"will"  or  "desire"  of  the  actor.  Whether  for  good  or  ill  the 
common  law  did  not  take  this  course.  It  has  unequivocally 
made  the  writing  the  legal  act  which  is  enforced,  and  in  conse- 
(|uence  it  is  the  writing  alone  which  constitutes  the  subject  mat- 
ter to  be  interpreted.  That  which  is  unequivocally  withdrawn 
as  a  subject  matter  of  interpretation  is  the  inducement.  This 
is  uncompromisingly  fundamental.^ 

It  follows  that  nothing  can  be  inserted  in  the  writing  which 
is  not  there.-  No  word  not  in  the  writing  can  be  substituted 
for  one  that  is  there.-'  These  rules  apply  with  special  force 
where  the  legal  act  is  required  by  law  to  be  in  writing.  They 
apply,  however,  as  well  where  the  legal  act  is,  in  fact,  in  writing, 
though  not  required  to  be.  This  is  the  result  of  the  rule  of  law 
as  to  writings  that  where  a  legal  act  is  expressed  in  writing 
(though  not  required  to  be)  it  may,  and  in  most  cases  must,  by 
a  necessary  inference  that  the  party  so  wills,  be  taken  as  the 
sole  memorial  of  the  act."* 

1  This  has  been  laid  down  so  many  2  4  Wigmore  on  Evidence,  §  2459 ; 

times  that  a  complete  list  of  refer-  Thayer,  Preliminary  Treatise  on  Ev- 

ences    in    the    Illinois    cases    could  idence,  411-412;  Bond  v.  Moore,  236 

hardly  be  given.     A  few  picked  up  111.   576;    Heslop   v.  Gatton,   71   111. 

at  random,  are  as  follows:   Blatch-  528;  Jordan  v.  Jordan,  281  111.  421. 

ford    V.    Newberry,    99    111.    11,   50;  a  Kurtz  t;.  Hibner,  .55  111.  514. 

Henderson  v.  Harness,  176  111.  302,  4  4  Wigmore  on  Evidence,  §§2401, 

305;   Butterfield  v.  Sawyer,  187  111.  2^25  et  seq. 
•598,   602;    Engelthaler  v.   Engeltha- 
ler,  196  111.  230;  Deemer  v.  Kessin- 
ger,  206  111.  57,  62. 

118 


CH.  VII]  I'RINCIl'LES    OF    INTERI'KETATIOX  [  >5  124 

With  the  rise  and  deveh)pnieiit  of  ctiuity  and  its  jurisdiction 
to  remedy  mistakes  tlie  court  of  chancery  might  conceivably 
have  provided  a  remedy  to  rectify  the  mistake  of  a  testator  or 
settlor  in  a  unilateral  instrument  of  devise  or  gift,  due  to  the 
omission  of  a  word  or  phrase  or  the  insertion  of  the  wrong  word. 
This,  however,  it  has  refused  to  do."' 

It  may,  therefore,  he  stated  generally  that  (apart  from  excep- 
tional cases,  if  any,  wliei-e  a  remedy  is  given  to  reform  a  uni- 
lateral instrument  because  of  mistake  and  by  this  process  to 
give  effect  to  tlie  objects  and  purposes  of  the  inducement)  the 
only  subject  matter  of  interpretation  is  the  legal  act  of  the  party 
or  parties  contained  in  the  words  of  the  writing  as  distinguished 
from  the  inducement  to  the  legal  act.  It  makes  no  difference 
whether  the  legal  act  is  required  by  law  to  be  in  writing  or  not, 
or  whether  the  question  arises  at  law  or  in  equity.  To  this 
proposition,  there  is  general  agreement,  though  it  is  stated  in  a 
variety  of  ways.  Wigram  distinguished,  ''What  the  testator 
meant"  from  "What  is  the  meaning  of  his  words."*'  "Intent" 
has  been  distinguished  from  "meaning.""  Mr.  Wigmore  dis- 
tinguishes "will"  from  "sense."  ^  All  alike  are  merely  at- 
tempting to  find  suitable-  expressions  for  distinguishing  the  in- 
ducement to  the  legal  act  from  the  legal  act  itself  for  the  pur- 
pose of  emphasizing  the  fundamental  rule  that  the  latter  only 
is  the  proper  subject  matter  of  interpretation. 

TITLE    II. 
STANDARDS    OF    INTERPRETATION. 

i^  124.  Wigmore 's  three  standards  applicable  to  unilateral 
acts:  So  far  as  unilateral  acts — such  as  wills  or  settlements  by 
way  of  gift  inter  vivos — are  concerned,  ^Ir.  Wigmore  sets  out 
three  possible  standards  of  interpretation : '^  First:  "The  stand- 
ard of  the  normal  users  of  the  language  of  the  forum,  the  com- 
munity   at    large,    represented    by    the    ordinary    meaning    of 

5  Newburgh  r.  Newburgh,  5  Madd.  in  Rickman  r.  Carstairs,  5  B.  &  Ad. 

;564;  Miller  v.  Travers,  8  Bing.  244.  (551,  663;  Lord  Wensleydale  in  Grey 

«  Wigram,    Extrinsic    Evidence    in  r.  Pearson,  6  H.  L.  C.  61,  106. 
Aid  of  the  Interpretation  of  Wills,  ■*  4  Wigmore  on  Evidence,  §  2459. 

Introductory  par.  9.  "4  W^igmore  on  Evidence,  §§  2458, 

"  Parke,  J.,  in  Doe   i'.  Gwillim,  5  2461. 
B.  &  Ad.  122,  129;   Denman,  C.  J. 

119 


§  125]  INTERPRETATION  OF  WILLS    ^        [Ch.  VII 

words";  Second:  "The  standard  of  a  special  class  of  persons 
within  the  community";  Third:  "The  standard  of  an  individual 
actor  who  may  use  words  in  a  sense  wholly  peculiar  to  himself." 

§  125.  Mr.  Justice  Holmes'  sing-le  standard  of  interpreta- 
tion: Mr.  Justice  Holmes  seems  to  be  of  opinion  that  one 
standard  only  is  used — that  "of  a  normal  speaker  of  English, 
using  them  [the  words  in  question]  in  the  circumstances  in 
which  they  were  used."  '"  Justice  Holmes  does  not  quite  make 
it  clear  whether  he  is  merely  asserting  a  fact  or  a  rule  of  law. 
Does  he  say  that  all  the  so-called  possible  standards  really  reduce 
themselves  to  one  ?  Or  does  he  say  that  the  law  allows  only  the 
one?  Perhaps  he  means  that  the  law  allows  only  the  one  and 
that  the  different  standards  so  far  as  they  appear  to  be  available 
are  really  reducible  to  the  one.^^  Mr.  Wigmore,  on  the  other 
hand,  asserts:  "All  the  standards  are  provisional  only,  and 
therefore  each  may  be  in  turn  resorted  to  for  help";^^  and 
"a  unilateral  act  may  be  interpreted  by  the  individual  standard 
of  the  actor";  i=*  the  point  being  to  find  out  which  standard  is 
used. 

Suppose,  for  instance,  the  testator  wrote  his  will  in  a  cipher 
Avhich  made  sense  as  the  words  stood  according  to  common 
usage,  could  it  be  shown  that  he  had  used  a  cipher  or  special 
individual  standard  of  interpretation  so  that  his  words  would, 
for  the  purpose  of  determining  their  legal  consequences,  bear 
a  different  meaning?  Judge  Holmes  indicates  that  he  would 
answer  this  in  the  negative.^'*     Would  Mr.  Wigmore  answer  in 

10  "The  Theory  of  Legal  Inter-  to  a  contract  orally  agreed  that 
pretation,"  12  Harv.  Law  Rev.,  when  they  wrote  five  hundred  feet 
4j7^  it  should  mean  one  hundred  inches, 

11  That  would  explain  the  follow-  or  that  Bunker  Hill  Monument 
ing  passage  in  ' '  The  Theory  of  Le-  should  signify  Old  South  Church, 
gal  Interpretation,"  12  Harv.  Law  On  the  other  hand,  when  you  have 
R€v,,  417,  420:  "I  do  not  suppose  the  security  of  a  local  or  class  cus- 
that  you  could  prove,  for  purposes  torn  or  habit  of  speech,  it  may  be 
of  construction  as  distinguished  presumed  that  the  writer  conforms 
from  avoidance,  an  oral  declaration  to  the  usage  of  his  place  or  class 
or  even  an  agreement  that  words  in  when  that  is  what  a  normal  person 
a     dispositive     instrument     making  in  his  situation  would  do." 

sense   as  they  stand  should  have  a  124  Wigmore  on  Evidence,  §2461. 

different  meaning  from  the  common  is  Id.  §  2467. 

one ;    for  instance,  that  the  parties  1*  See  note  11  supra. 

120 


CH.  VII]  PRINCIPLES   OF    INTERPRETATION  [§127 

the  affirmative,'''  or  would  lie  avoitl  making  a  deeisioii  in  the 
case  put  decisive  of  his  theory  by  advocating  a  special  rule  that, 
on  grounds  of  policy,  the  individiuil  standard  difVering  from 
that  of  cf)mmon  usage  would  not  be  permitted  in  the  special 
case  ? 

§  126.  The  "will"  or  "intention"  of  the  inducement  as  a 
standard  of  interpretation:  There  is  still  another  possible 
standard  of  interprctat  iim — the  inducement  of  the  testator  to 
his  act, — what  he  intended  to  accomplish  by  his  legal  act.  Why 
should  not  his  words  be  interpreted  in  the  light  of  such  "inten- 
tion" as  a  standard?  It  would  seem  that  Hawkins  may  have 
contended  for  some  such  view,i«  and  that  perhaps  Thayer  fol- 
lowed him  in  it.^"  Certainly  Mr.  Phipson^«  more  recently  so 
interpreted  Hawkins'  and  Thayer's  views  and  appears  to  have 
agreed  with  them  and  to  have  thought  that  some  authorities 
went  so  far.  It  is  believed  that  no  authority  has  ever  consciously 
adopted  such  a  view.  To  do  so  would  be  in  effect  to  make  the 
inducement  the  subject  matter  of  interpretation  in  the  guise  of 
considering  it  as  an  appropriate  standard  for  determining  what 
the  words  used  mean.  There  is  little  practical  difference  be- 
tween taking  the  words  used  as  the  subject  matter  of  interpreta- 
tion while  at  the  same  time  using  the  inducement  to  them  as  a 
standard,  and  taking  the  inducement  as  the  subject  matter  of  in- 
terpretation and  then  considering  whether  the  words  used  express 
the  meaning  which  is  found  in  the  interpretation  of  the  induce- 
ment. If  the  inducement  is  to  be  kicked  out  of  the  front  door  as 
the  subject  matter  of  interpretation,  it  should  not  be  taken  in  at 
the  back  as  the  standard  of  interpretation. 

TITLE  III. 

SOURCES  FOR  ASCERTAINING  THE  TENOR  OF  THE  STANDARD 
OF   INTERPRETATION— EXTRINSIC  EVIDENCE. 

§  127.  The  instrument  itself :  The  instrument  itself  not 
infrequently  on  its  face  indicates  what  standard  of  interpreta- 

15  See  4  Wigmore  on  Evidence,  i"  Thayer,  Preliminary  Treatise 
§§  2462,  3481.                                                on  Evidence,  412,  480. 

16  Hawkins,  "Principles  of  Legal  is  "Extrinsic  Evidence  in  Aid  of 
Interpretation,"  2  Jurid.  Soc.  Pa-  Interpretation, "  20  Law  Quart.  Rev. 
pers  298,  reprinted  in  Thayer,  Pre-       245,  25;}, 

liminary  Treatise  on  Evidence,  App. 
C. 

121 


§128]  INTERPRETATION    OF    WILLS  [Ch,  VII 

tion  is  to  be  used.  It  may  disclose  on  its  face  that  it  was  written 
in  cipher.  Most  frequently,  of  course,  the  instrument  shows 
that  the  words  employed  were  used  in  their  usual  and  ordinary 
meaning.  Indeed,  it  may  be  laid  down  that  prima  facie  the 
popular  or  common  usage  standard  is  to  be  taken.  A  mistake 
may  have  been  made.  The  testator  may  have  inadvertently  used 
the  wrong  word,  but  the  face  of  the  instrument  may  show  that 
he  was  not  consciously  putting  any  unusual  meaning  upon  the 
language  used.  It  may  show  that  he  was  using  the  word  which 
he  did  use  by  mistake  according  to  the  standard  of  the  normal 
user  of  English.  For  instance,  if  he  devises  "section  thirty- 
one,"  there  may  be  evidence  showing  that  his  object  was  to 
devise  "section  thirty-two"  and  that  he  made  a  mistake  in  using 
"tiiirty-one,"  but  the  evidence  may  still  be  conclusive  that  the 
testator  when  he  used  "thirty-one,"  was  not  making  use  of  a 
code  in  which  "thirty-one"  meant  "thirty-two,"  but  that  he 
was  using  "thirty-one"  in  its  usual  sense.  The  interpretation 
of  what  he  said  is,  therefore,  plain,  according  to  his  words  and 
the  standard  which  he  employed.  If  there  is  any  relief,  it  is  to 
correct  a  mistake  and  not  to  effect  a  different  interpretation  of 
the  instrument.  ^^ 

§128.  Extrinsic  evidence  —  Introductory:  All  evidence 
which  is  relevant  to  complete  or  ascertain  the  tenor  of  the 
standard  of  interpretation  to  be  applied  and  which  is  not  ex- 
cluded by  any  special  rules  of  exclusion,  is  admissible  and  must 
be  considered. 

( 1 )  According  to  Mr.  Justice  Holmes  ^o  the  standard  is  that 
of  "  a  normal  speaker  of  English ' '  using  words  in  the  ' '  circum- 
stances in  which  they  were  used."  If,  however,  the  "circum- 
stances" are  part  of  the  test  they  must  be  carefully  defined. 
Apparently  Judge  Holmes  means  by  "circumstances"  those 
which  the  courts,  proceeding  on  an  entirely  different  theory, — 
namely,  that  the  individual  standard  of  the  writer  may  be  used, 
— have  been  accustomd  to  admit  for  consideration. 

(2)  According  to  Mr.  Wigmore  (following,  it  is  believed,  the 
usual  view  of  the  courts),  the  individual  standard  of  a  testator 
or  settlor  may  be  used.  Hence  extrinsic  evidence  of  that  stand- 
ard may  be  considered  if  it  is  not  excluded  by  some  rule  of 

19  Kurtz   V.   Hibner,   f55   111.   514;  20  "The    Theory    of    Legal   Inter- 

see  yost,  §  134  et  seq.  pretation,"  12  Harv.  Law  Rev.  417. 

122 


Ch.  VII]  PRINCIPLES    OF    INTERPRETATION  [§128 

evidence.  Always,  however,  the  ultimate  fact  to  be  j)roved  is 
whether  the  testator  or  settlor  had  an  individual  standard  and 
if  so,  what  it  is.  Never  is  the  interpreter  permitted  to  use  the 
extrinsic  evidence  to  prove  the  object  and  purposes  of  the  in- 
ducement as  a  standard  of  interpretation. 

(a)  In  some  cases,  extrinsic  evidence  tends  to  prove  an  indi- 
vidual standard  and  does  not,  at  the  same  time,  tend  to  prove 
the  objects  and  purjioses  of  the  inducement.  In  such  cases  the 
use  of  the  extrinsic  evidence  does  not  run  the  danger  of  intro- 
ducing: the  immaterial  and  improper  issue  of  what  are  the 
objects  and  purposes  of  the  inducement.  lOxtrinsic  evidence  of 
this  sort  is,  therefore,  admitted.  Thus,  evidence  that  the  testator 
habitually  called  a  devisee  by  a  particular  name  would  tend  to 
prove  the  use  of  an  individual  standard  in  the  use  of  that  name 
by  the  testator,  and  so  with  regard  to  habits  of  speech  generally. 
If  a  will  were  on  its  face  in  cipher,  the  testator's  key  to  the 
cipher  would  be  relevant  to  show  the  individual  standard  in  the 
use  of  the  words  and  the  inducement  would  be  untouched  by  the 
evidence. 

(b)  In  most  cases,  however,  any  effort  to  go  into  extrinsic 
circumstances  in  order  to  establish  an  individual  standard  of 
the  testator  w'ithout,  at  the  same  time,  showing  the  objects  and 
purposes  of  the  inducement  to  the  legal  act,  is  impossible.  The 
ultimate  facts  regarding  the  objects  and  purposes  of  the  in- 
ducement and  the  ultimate  facts  as  to  the  individual  standard 
are  usually  founded  upon  the  same  extrinsic  evidence.  The 
two  issues  are  inextricably  mixed.  Take,  for  instance,  "the 
knowledge  and  surrounding  circumstances  of  the  testator"  or 
"his  treatment  of  and  relations  with  particular  persons"  or 
"his  mode  of  enjoying  and  dealing  with  property."  ^^  It  is 
precisely  out  of  evidence  along  these  lines  that  the  objects  and 
purposes  of  the  testator  may  be  built  up  and  used  as  a  standard 
of  interpretation.  At  the  same  time,  evidence  on  these  lines 
often  tends  with  varying  degrees  of  probative  value  to  show 
that  the  testator  was  using  words  according  to  a  standard  pe- 
culiar to  himself. 

-1  "Extrinsic  P^videnee  in  Aid  of 
Interpretation  of  Wills, ' '  20  Law 
Quart.  Bev.  257. 

123 


§  128]  INTERPRETATION    OF    WILLS  [Ch.  VII 

111  Charier  v.  Charter,--  for  iiistance,  the  testator  having  only 
two  sons,  William  Foster  Charter  and  Charles  Charter,  ap- 
pointed as  his  executor  "my  son,  Foster  Charter,"  The  testa- 
tor's habits  of  speech  were  allowed  to  be  proved,  i.e.,  that  he 
called  his  first  son  "William"  or  "Willie,"  but  never  Foster. 
Evidence  was  also  considered  that  William  had  quarreled  with 
the  testator  and  had  left  the  house.  Other  evidence  was  con- 
sidered of  the  testator's  treatment  of  and  feelings  toward  his 
sons.  Such  evidence  may  be  of  veiy  slight  or  remote  relevancy 
in  determining  whether  the  testator  had  a  special  individual 
standard  of  interpretation  in  .writing  Foster  so  that  it  referred 
to  a  son  named  Charles,  but  that  it  had  some  probative  value 
in  that  connection  should  not  be  open  to  doubt.  Proof  of  an 
inducement  or  "will"  or  "desire"  to  make  Charles  executor 
would  tend  to  show  either  mistake  in  using  the  wrong  name  or 
else  that  the  name  used  was  to  be  interpreted  with  reference 
to  a  special  individual  standard  of  interpretation.  It  is  proba- 
tive of  either  fact.  It  is,  therefore,  at  least  relevant  to  prove 
a  special  individual  standard  of  interpretation.  Sir  James 
Stephen  asks  -^  "How  can  any  amount  of  evidence  to  show  that 
the  testator  intended  [i.e.,  "willed"  or  "desired"]  to  write 
Charles,  show  that  what  he  did  write  means  Charles?"  The 
answer  is  simple.  What  the  testator  "willed"  or  "intended" 
by  way  of  inducement  to  say,  tended  to  prove  that  what  he 
did  say  was  so  said  with  reference  to  an  individual  standard  of 
interpretation  in  which  "Foster"  designated  the  person  named 
Charles.  It  must,  therefore,  be  conceded  that  what  a  testator 
"wills"  or  "intends"  by  way  of  inducement,  will  frequently 
be  of  Some  probative  value  in  determining  whether  or  not  he 
has  used  words  according  to  some  special  individual  standard.-* 

22  (1874;  L.  R.  7  H.  L.  (Eng.  &  dividual  standard,  and  that,  there- 
Ir.  App.)   364.  fore,   such   cases  prove  that   the  in- 

23  Digest  of  Evidence,  note  33.  ducement    was    a    real    and    proper 
2*  It     should     be     observed     that       factor  in  the  process  of  interpreta- 

other  writers,  perceiving  that  some  tion.  Thus,  Mr.  Phipson  in  20  Law 
of  the  evidence  of  surrounding  cir-  Quart.  Rev.  245,  252,  after  accept- 
cumstanees  considered  by  the  courts  ing  the  view  that  the  evidence  of  the 
was  relevant  to  prove  the  "intent"  testator's  treatment  of  and  feelings 
of  the  inducement,  have  insisted  towards  his  sons  in  Charter  v.  Char- 
that  it  was  not  relevant  to  prove  ter  was  relevant  only  to  show  the 
that  the  testator  used  any  special  in-  testator 's   * '  intention ' '   by    way    of 

124 


Ch.  VIJ]  I'UIXCll'LKS    OF    IXTEKI'KETATION  [§128 

Here,  then,  is  the  Achilles'  heel  of  the  subject  for  the  inter- 
preter who  wishes  to  use  the  inducement  to  control  the  meaning 
of  the  legal  act.  Here  we  have  a  theoretically  correct  issue  upon 
which  all  evidence  of  the  inducement— the  "will,"  "desire" 
or  "intention" — of  the  testator,  may  be  received  if  not  ex- 
cluded by  any  rule  of  evidence.  The  logical  pursuit  of  sound 
theory  has,  therefoi-c,  brouj^ht  us  to  an  investigation  of  the 
theoretically  forbidden  tield  of  the  inducement  to  the  legal  act. 
The  situation  is  a  practical  theoretic  dilemma.  A  theory  founded 
upon  the  fact  that  it  is  the  legal  act  which  is  to  be  interpreted, 
which  tolerates  no  competition  by  the  purposes  and  objects  of 
the  inducement,  either  as  a  subject  matter  of  interpretation  or 
as  a  standard  of  interi^retation,  is  faced  with  a  logical  ground 
upon  which  the  whole  inducement  may  be  gone  into  by  way  of 
showing  an  individual   standard  of  interpretation. 

In  this  situation,  the  courts  liave  done  the  only  thing  that 
could  be  expected.  They  have  allowed  experience  to  dictate 
several  rules  which  have  the  effect  of  excluding  to  a  consider- 
able extent,  but  not  wholly,  inquiries  into  the  "inducement" 
or  "will"  or  "intent"  of  the  testator.  In  short,  an  effort  has 
been  made  to  allow  some  proof  of  the  inducement  of  the  testator 
in  order  to  ascertain  the  tenor  of  an  individual  standard  of 
interpretation  without,  at  the  same  time,  throwing  the  whole 
subject  of  the  inducement  open  to  proof  and  thus,  in  practical 
effect,  making  the  inducement  the  subject  matter  to  be  inter- 
preted or  the  standard  of  interpretation.  Such  a  course  is  a 
practical  solution  of  the  theoretic  dilemma.  It  cannot  be  called 
illogical  or  unsound  in  theory  because  the  theory  of  interpreta- 
tion, itself,  pressed  to  its  logical  conclusion,  results  in  a  hope- 
less theoretic  dilemma.  The  practical  solution  of  a  theoretic 
dilemma  means  that  of  two  completing  theoretically  correct  re- 
sults one  gives  way  before  the  other.  It  remains,  then,  to  con- 
sider the  special  rules  by  means  of  which  evidence  of  the  ob- 

indueenient,    says:      "The    issue    or  ing  aceording  to  the  actual  intention 

object,    then,    could    not    have   been  of  the  testator,  for  otherwise  the  ev- 

to    ascertain    the    meaning    of    the  idenoe  would  have  been  irrelevant. " 

words    'Foster    Charter'    according  The    fallacy    here    is    the    assertion 

to  either   general   or   special   stand-  that   the    evidence    would    otherwise 

ards;  apparently,  therefore,  it  must  "have  been  irrelevant." 
have  been  to  ascertain  their  mean- 

125 


§  129]  INTERPRETATION    OF    WILLS  [Ch.  VII 

jects  and  purposes  of  the  inducement — the  ''will"  or  "desire" 
of  a  testator — is  excluded  when  offered  to  prove  that  the  testator 
had  a  special  individual  standard  of  interpretation  and  what 
that  standard  was. 

§  129.  The  rule  against  ' '  disturbing  a  clear  meaning ' ' : 
This  is  embodied  in  Wigram's  Proposition  II  as  follows:-'^ 
"Where  there  is  nothing  in  the  context  of  a  will,  from  which  it 
is  apparent  that  a  testator  has  used  the  words  in  which  he  has 
expressed  himself  in  any  other  than  their  strict  and  primary 
sense,  and  Avhere  his  words  so  interpreted  are  sensible  with 
reference  to  extrinsic  circumstances,  it  is  an  inflexible  rule  of 
construction,  that  the  words  of  the  will  shall  be  interpreted  in 
their  strict  and  primary  sense,  and  in  no  other,  although  they 
may  be  capable  of  some  popular  or  secondary  interpretation, 
and  although  the  most  conclusive  evidence  of  intention  to  use 
them  in  such  popular  or  secondary  sense  be  tendered." 

The  practical  operation  of  this  rule  was  to  forbid  the  resort 
to  any  surrounding  circumstances  or  to  any  individual  standard 
where  the  words  used  in  their  primary  sense  were  "sensible 
with  reference  to  extrinsic  circumstances."  In  such  cases  the 
rule  cut  off  the  interpreter  from  the  opportunity  to  build  up 
the  inducement  and  use  that  as  a  standard  of  interpretation. 
This,  so  far  as  it  tends  to  prevent  the  ob.jects  and  purposes  of 
the  inducement  from  being  used  as  a  rival  subject  matter  of 
interpretation  or  a  rival  standard  of  interpretation,  is  theo- 
retically sound.  So  far  as  it  prevents  proof  of  the  use  by  the 
testator  of  an  individual  standard  of  interpretation,  it  is  theo- 
retically unsound.  A  theoretic  dilemma  is  presented.  It  has 
been  solved  by  the  application  of  practical  considerations.  The 
rule  against  disturbing  a  plain  meaning  rests  in  the  last  analysis 
upon  grounds  of  practical  expediency  which  support  one 
theoretically  correct  result  at  the  expense  of  another.  Its  only 
basis  is  the  practical  danger  to  the  whole  theory  of  interpreta- 
tion in  letting  in  the  intent  of  the  inducement  to  be  used  as  a 
competing  subject  matter  or  standard  of  interpretation.  There 
is  no  use  in  saying  that  it  would  not  compete  but  would  only 
furnish  the  basis  for  ascertaining  the  individual  standard  of 

25  Wigram,  Extrinsic  Evidence  in 
Aid  of  the  Interpretation  of  Wills, 
Introductory  par.  14. 

126 


Ch.  VII|  I'KIXCII'LES    OF    INTERPRETATION  [§129 

the  testator.  I'racticall^  il  would  coinix'te.  Counsel  are  quick 
to  build  up  a  whole  structure  of  inducement  and  to  use  it  as 
a  subject  matter  or  standard  of  interpretation  in  order  to  over- 
throw the  meaning  of  the  words  according  to  the  standard  which 
the  testator  lias  in  most  cases  actually  used.  Practically,  counsel 
would  use  the  intlucement  for  the  purpose  of  so  molding  the 
process  of  interpretation  as  to  correct  mistakes.  When  the  door 
had  been  opened  that  wide  we  would  enter  the  realm  of  false, 
exaggerated  and  speculative  claims.  The  inconvenience  and 
expense  of  uncertainties  in  conveyancing  and  the  handling  of 
trust  estates  would  arise  and  multiply.  No  cause  would  be 
hopeless  and  no  cause  secure.  Suits  to  constnie  or  for  the  pro- 
tection of  trustees  or  purchasers  would  multiply.  Questions 
which  ought  to  be  settled  inexpensively  without  litigation  would 
have  to  go  tlirough  the  courts  for  a  final  determination  as  to 
the  proper  meaning  of  the  writing.  In  determining  the  force 
to  be  given  to  these  practical  considerations  the  opinions  of  a 
writer  like  Wigram  and  of  judges  and  lawyers  having  the  most 
considerable  experience  in  the  construction  of  wills  and  settle- 
ments are  entitled  to  much  weight. 

There  have  been  in  recent  times  at  least  two  views  as  to  the 
rigidity  of  this  rule  against  disturbing  a  plain  meaning.  Wig- 
ram  laid  it  down  as  a  rule  of  law— "an  inflexible  rule  of  con- 
struction"— to  be  obeyed  as  other  rules  of  law  are  obeyed. 
This  view  of  the  rule  has  been  held  and  enforced  in  England 
and  to  some  extent  in  this  country. -••  Lord  Bowen,  on  the 
other  hand,  declared  the  rule  to  be  not  so  much  "a  canon  of 
construction  as  a  counsel  of  caution" — not  so  much  a  rule  of 
law  as  a  reminder  to  judges  that  they  were  "not  to  give  weight 
to  guesses  or  mere  speculation  as  to  the  probabilities  of  an 
intention,  but  to  act  only  on  such  evidence  as  can  lead  a  rea- 
sonable man  to  a  distinct  conclusion. ' '  -"  How  far  Lord  Bowen 's 
suggestion  as  to  the  character  of  the  rule  should  prevail  is 
again  a  practical  question.  In  the  hands  of  judges  with  the 
special  training  which  success  in  practice  at  the  English  chancery 
bar  furnishes,  a  "counsel  of  caution"  might  be  sufficient  to 
achieve  all  the  best  results  of  the  more  rigid  rule  and  still  leave 
some  margin  for  the  special  case.     Suppose,  however,  among 

•-'•:  4       Wigniore       on       Evidence,  -'  Bowen,  L.  J.  in  Re  Jodrell,  44 

§4)  2462,  246;i  Ch.  D.  590. 

127 


§  130]  INTERPRETATION    OF    WILLS  [Ch.  VII 

judges  of  far  less  specialized  training  the  "counsel  of  caution" 
comes  to  mean  merely  the  absence  of  any  rule  against  disturbing 
a  plain  meaning  and  complete  freedom  to  proceed  as  if  no  such 
rule  existed.  Such  a  condition  continuing  for  a  generation 
means  that  all  suggestion  of  the  rule  would  disappear  and  that 
judges  and  counsel  alike  would  assume  the  freest  right  to  con- 
sider all  the  extrinsic  evidence,  not  excluded  by  recognized 
rules,  in  order  to  build  up  the  inducement  and  to  use  it  as  the 
standard  of  interpretation.  If  that  is  the  result  of  turning  the 
rule  against  disturbing  a  plain  meaning  into  a  mere  "counsel 
of  caution,"  then  the  rule  against  disturbing  a  plain  meaning 
has  not  only  been  wholly  lost  but  the  supreme  effort  of  the 
common  law  to  keep  the  inducement  from  becoming  the  sub- 
ject matter  or  a  controlling  standard  of  interpretation  has  to 
a  large  extent  failed. 

§  130.  Direct  declarations  by  the  testator  or  settlor — Such 
declarations  as  relate  to  the  standard  of  interpretation  used, 
when  they  do  not  also  disclose  the  objects  and  purposes  of  the 
inducement,  should  be  received:  Thus,  if  a  writing  is  appar- 
ently in  cipher  the  declarations  of  the  writer  which  reveal  the 
key  should  be  received.  They  are  relevant.  There  is  no  rule 
of  exclvision.  If  they  are  regarded  as  hearsay,  then  the  ex- 
ception which  permits  declarations  showing  the  state  of  the 
declarant's  mind  is  applicable.  So  declarations  of  a  testator 
which  show  his  "habits  of  speech"  should  be  received  on  the 
same  ground.  They  preponderate  to  show  the  actual,  individual 
standard.  They  may  have  practically  no  effect  in  indicating 
the  objects  and  purposes  of  the  inducement. 

§  131.  Declarations  of  the  testator  or  settlor  which  disclose 
the  objects  and  purposes  of  the  inducement:  These  are  rele- 
vant in  determining  the  individual  standard  used.  They  are 
not  excluded  by  the  hearsay  rule  because  they  fall  within  a 
well  recognized  exception.  They  are  excluded  ^^  because  they 
are  too  certain  to  be  used  improperly  to  make  the  objects  and 
purposes  of  the  inducement  the  subject  matter  of  interpreta- 
tion or  the  standard  of  interpretation.^^    They  give  more  com- 

zswrison  V.  Wilson,  268  111.  270.  a  kind  of  evidence  to  which  both  of 

29  Nichols,  "Extrinsic  Evidence  in  these  reasons  [securing  certainty  of 

the     Interpretation     of     Wills,"     2  title      and      preventing      fraudulent 

.lurid.  Soc.  Papers  352:     "There  is  proof]   and  the  analogy  of  the  law 

128 


Cn.  VII]  PRINCIPLES   OF    INTERPRETATION  [§  132 

fort  to  the  false  and  improper  issue  than  they  give  aid  to  the 
proper  one. 

i?  132.  Exception  in  the  case  of  equivocation:  To  the  gen- 
eral rule  exeluding  sueli  declarations  tiiere  is  an  exception  in 
the  case  where  the  term  to  be  interpreted,  upon  application 
to  external  objects,  is  found  to  fit  two  or  more  equally.'*"  The 
basis  of  this  is  the  fact  that  upon  a  balance  of  all  the  considera- 
tions the  objections  to  not  using  the  evidence  overcome  the 
dangers  from  its  use.  For  instance,  if  the  evidence  be  not  used, 
the  gift  may  fail  entirely  for  uncertainty.  In  such  a  situation, 
any  evidence  of  the  actual  individual  standard  of  interpreta- 
tion used  ought  to  be  resorted  to.  Mr.  Justice  Holmes  makes 
tlie  acute  suggestion  •'•i  tliat  "while  other  words  may  mean 
dit!'erent  tilings,  a  proper  name  means  one  per.son  or  thing  and 
no  otlier. ''  Hence  (though  this  is  not  quite  the  way  Mr.  Ju.stice 
Holmes  puts  it)''-  the  declaration  of  what  the  testator  meant 
is  in  the  highest  degree  probative  of  the  individual  standard 
of  interpretation  which  he  has,  in  fact,  used. 

It  has  been  argued  that  because  in  one  case  it  is  permissible  to 
put  in  direct  declarations  which  show  the  objects  and  purposes  of 
the  inducement,  such  objects  and  purposes  are  theoretically 
proper  facts  to  be  considered  in  the  process  of  interpretation. 
The  present  exposition  is  made  for  the  purpose  of  pointing 
out  the  danger  of  adhering  to  such  a  statement.  The  objects 
and  purposes  of  the  inducement  are  not  in  and  of  themselves 
either  the  proper  subject  matter  of  interpretation  or  a  proper 
standard  of  interpretation.  They  are,  as  such,  and  in  accord- 
ance with   our  legal  theory,    rigidly   excluded.     Indeed,   even 

requiring  the   will   to  be  in  writng,  an    aspect    of    rivalry    to    the    will, 

must    strongly    apply;    I    mean,    of  which  raises  a  prejudice  against  its 

course,  the  species  of  evidence  which  reception. ' ' 

we  have  called  direct  evidence  of  ^^  4  Wigmore  on  Evidence,  §  2472. 
intention;  and  which,  if  admitted,  si  "The  Theory  of  Legal  Inter- 
would  consist  for  the  most  part  of  pretation, "  12  Harv.  Law  Rev.  417, 
declarations    and    informal    written  418. 

memoranda  of  the  testator,  and  of  32  He    says:    "*     *     *     recogniz- 

instructions  given  by  him  to  the  per-  ing   that   he   has   spoken   with   theo- 

sons  employed  in  the  preparation  of  retic  certainty,   we  inquire   what   he 

the  formal  instrument.    Evidence  so  meant  in  order  to  find  out  what  he 

nearly    allied    in    character    to    that  has  said." 
furnished  by  the  will  itself,  presents 

Kales  Fut.  Int. — 9  ]^29 


§  132  j  INTERPRETATION    OF    WILLS  [ClI.  VII 

wlieu  evidence  of  the  objects  and  purposes  of  the  inducement 
tends  to  show  an  individual  standard  of  interpretation,  it  is 
still  excluded  because  of  the  danger  arising  in  permitting  any 
opportunity  for  the  objects  and  purposes  of  the  inducement 
to  become  a  competing  subject  matter  or  standard  of  inter- 
pretation. To  a  slight  extent,  evidence  which  tends  to  reveal 
the  objects  and  purposes  of  the  inducement  is  let  in  because 
it  also  tends  to  prove  an  individual  standard  of  interpretation. 
That  is  the  true  basis  for  the  exception  which  lets  in  direct 
declarations  of  intention  in  the  case  of  equivocation. 

Some  controversy  has  arisen  as  to  whether  tlie  rule  excluding 
direct  declarations  of  intention,  and  the  exception  which  admits 
them  in  the  case  of  equivocation,  are  rules  of  the  substantive  law 
of  evidence  or  of  the  substantive  law  of  interpretation.     This 
is  a  debate  over  the  names  to  be  given  to  ideas.    It  is  a  profitless 
field  of  discussion  except  so  far  as  it   offers  the  opportunity 
again  to  state  essential  differences.     The  rule  which  excludes 
objects  and  purposes  of  the  inducement  as  a  subject  matter 
of  interpretation  or  as  a  standard  of  interpretation  is  a  rule  of 
the  substantive  law  of  interpretation.     Hence,  so  far  as  direct 
declarations  of  intention,  which  show  the  objects  and  purposes 
of  the  inducement,  are  excluded  because  they  are  irrelevant, 
the  application  is  of  the  substantive  law  of  interpretation.     So 
far  as  direct  declarations   of   intention   tend   to  prove  an   in- 
dividual standard  of  interpretation  the  substantive  law  of  in- 
terpretation makes  them  relevant.    When  they  are  still  excluded 
merely  because  tliey  are  of  slight  probative  value  to  the  proper 
issue  and  almost  certain  to  be  used  improperly  to  make  the 
objects  and  purposes  of  the  inducement  a  subject  matter  of 
interpretation  or  a  standard  of  interpretation,  a  rule  of  the 
s-ubstantive  law  of  evidence  is  being  applied.    When  this  general 
principle  of  exclusion  becomes  inapplicable  in  the  case  of  equivo- 
cation, we  simply  have  a  well  defined  situation  where  the  prin- 
ciple of  the  substantive  law  of  evidence  upon  which  the  rule 
of    exclusion    is    founded   becomes    inapplicable.      The    results, 
therefore,  logically  reached  by  applying  the  rules  of  the  sub- 
stantive law  of  interpretation  to  determine  what  is  relevant, 
coupled  with  the  absence  of  any  rule  of  exclusion,  are   pro- 
duced.    It  is  futile  to  spend  time  debating  whether  the  failure 
of  the  general  rule  of  exclusion  to  operate  in  the  particular 

130 


Ch.  VII]  PRIXni'LES   OF    INTERPRETATION  [§133 

case  is  a  mere  application  of  the  rule  of  the  substantive  law 
of  interpretation,  coupled  with  an  absence  of  any  rule  of  the 
substantive  law  of  evidence  requiring  exclusion,  or  whether  it 
is  a  part  of  the  rule  of  exclusion  of  the  substantive  law  of 
evidence  which  determines  Avhen  the  {general  rule  of  exclusion 
does  not  operate. 

5<  133.  Even  where  extrinsic  evidence  (other  than  direct 
declarations  of  the  testator  or  settlor)  tends  to  prove  an  in- 
dividual standard  of  interpretation  in  cases  of  ambiguity  under 
Wigram's  Proposition  II,  it  may  still  be  excluded  because  it  is 
of  slight  and  remote  probative  force  to  establish  any  standard 
of  interpretation  on  the  one  hand  and  is  likely  to  be  used  im- 
properly to  establish  the  inducement  as  a  rival  subject  matter 
or  standard  of  interpretation:  AVifrram,^^  ^.^  fyj.  ^^  |^g  went, 
was  exactly  correct  when  he  said,  "Any  evidence  is  admissible, 
Avhich,  in  its  nature  and  effect,  simplij  explains  what  the  testator 
has  written;  but  no  evidence  can  be  admissible  which,  in  its 
nature  or  effect,  is  applicable  to  the  purpose  of  showing  merely 
what  he  intended  to  have  written."  His  error  was  in  assuming 
that  evidence  presented  tended  to  prove  merely  one  thing  or 
the  othei-.  The  fact  is  that  most  extrinsic  evidence  tends  to 
prove  both  things— namely,  that  the  testator  used  an  individual 
standai-d  and  that  he  intended  to  accomplish  certain  objects 
and  purposes  by  his  words.  Wigram's  error  in  refusing  to 
notice  that  the  same  evidence  might  be  relevant  on  both  issues, 
and,  indeed,  that  because  it  tended  to  prove  the  intent  of  the 
inducement  it  tended  to  prove  the  special  individual  standard 
of  the  testator,  made  it  difficult  for  him  to  explain  some  cases 
where  extrinsic  evidence  was,  in  fact,  admitted.  At  the  same 
time,  IlaAvkins,  whose  views  would  seem  to  require  that  the 
intention  of  the  inducement  be  regarded  practically  as  a  standard 
of  interpretation,  finds  many  ajiparent  difficulties  in  tiie  cases 
where  the  evidence  of  extrinsic  circumstances  tending  to  prove 
the  intent  of  the  inducement  was  excluded.  The  true  view, 
however,  and  tlie  one  which  will  best  reconcile  all  the  cases  is 
this:  In  determining  that  the  testator  has  used  a  special 
individual  standard,  one  may  go  into  evidence  of  the  intention 

33Wigiain,  Extrinsic  Evidence  in       Proliniinaiy    Observations,    Pars.    9 
Aid  of  the  Interpretation   of  Wills,       and  10. 

131 


§133] 


INTERPRETATION   OF   WILLS 


[Ch.  VII 


of  the  indueement,  but  in  so  doing  it  must  be  remembered  that 
there  is  danger  of  the  evidence  of  the  "intention"  of  the  in- 
ducement being  used  as  in  and  of  itself  a  standard  of  inter- 
pretation or  a  rival  subject  of  interpretation.  This  is  to  be 
avoided  as  improper.  Hence,  on  a  familiar  principle  (believed 
by  the  writer  to  be  a  rule  of  the  substantive  law  of  evidence, 
but  this  is  wholly  inconsequential),  facts  which  tend  only  very 
remotely  to  prove  the  "intention"  of  the  inducement  and 
therefore,  still  more  remotely,  to  prove  any  special  standard  of 
interpretation,  are  of  such  slight  and  remote  value  regarding 
the  proper  issue  and  so  likely  to  be  used  in  an  improper  way 
to  make  the  intention  of  the  inducement  a  subject  matter  or 
standard  of  interpretation,  that  courts  have  refused  to  consider 
them  at  all  and  have,  therefore,  excluded  them.^*  On  the  other 
hand,  in  many  cases  the  extrinsic  evidence  (other  than  direct 
declarations)  has  much  probative  force  to  show  an  individual 
standard  of  interpretation  and  are  weak  and  indirect  in  their 


34  Examples  of  such  rulings  will 
be  found  in  Mr.  Phipson's  article 
in  20  Law  Quart.  Rev.  245,  at  258, 
as  follows :  "In  Maybank  v. 
Brooks  (1780),  1  Bro.  C.  C.  84,  A 
left  a  legacy  to  'B,  his  executors 
administrators  and  assigns'  but,  B 
having  died  before  the  date  of  the 
will,  B  's  representative  claimed  the 
legacy,  tendering  evidence  tliat  A 
knew  of  B  's  death  when  making  the 
will,  in  order  to  show  that  A  meant 
the  legacy  to  be  transmissible.  Lord 
Thurlow  held  proof  of  A's  knowl- 
edge to  be  evidence  of  intention  and 
inadmissible.  Again,  in  Neale  v. 
Neale  (1898,  C.  A.),  79  L.  T.  629, 
A,  a  widow,  having  settled  property 
on  certain  trusts  to  arise  after  the 
'solemnization  of  her  intended  mar- 
riage,' B,  a  beneficiary,  claiming 
that  these  trusts  had  arisen,  ten- 
dered evidence  that  the  settlement 
was  made  in  contemplation  of  a  mar- 
riage, which  had  in  fact  taken  place, 
although  known  by  the  parties  to  be 


invalid,  between  A  and  her  deceased 
husband's  brother.  These  facts  were 
held  to  be  evidence  of  intention  and 
rejected.  'The  intention  of  the  par- 
ties cannot,'  Smith,  L.  J.,  held,  'be 
taken  into  account  for  the  purpose 
of  construing  the  plain  words  of  a 
deed, '  which  here  clearly  referred  to 
a  valid  and  not  an  invalid  union. 
Lastly  in  Higgins  v.  Dawson,  [1902] 
A.  C.  1,  the  question  being  whether 
the  words  'residue  and  remainder,' 
in  a  will,  referred  to  the  surplus  of 
two  sums  recited  to  have  been  lent 
by  the  testator  on  mortgage,  or  to 
the  surplus  of  his  whole  estate,  proof 
that  the  mortgage  debts  were  all  the 
property  the  testator  possessed  at 
the  time  of  the  will  was  tendered 
as  favoring  the  former  view,  but 
held  to  be  evidence  of  intention  and 
rejected.  'The  purpose  and  effect  of 
the  evidence, '  Lord  Shand  remarked, 
'  is  to  supply  a  basis  for  inferring 
tlio  intention  of  the  testator.'  " 


132 


CU.  VII]  I'RINCII'LES   OF    INTERPRETATION  [§  l^i') 

toiideiic)''  to  show  the  objects  and  purposes  of  the  inducement. 
Typical  cases  of  this  sort  are  those  where  the  extrinsic  evi- 
dence relates  to  "the  knowledge  and  surrounding  circumstances 
of  the  testator,"  or  "his  treatment  of  and  relations  with  par- 
ticular persons,"  or  "his  mode  of  enjoying  and  dealing  with 
property."''''^  Clearly  the  determination  of  whether  a  par- 
ticular item  of  extrinsic  evidence  which  tends  to  prove  the  in- 
tention of  the  inducement,  does  so  to  a  degree  so  slight  as  to  be 
excluded  as  evidence  of  a  special  individual  standard  lies  largely 
in  the  discretion  of  the  court.  All  courts  and  all  judges  would 
not  rule  the  same  in  every  case  and  the  facts  of  the  different 
cases  are  infinitely  various.  It  is  enough  to  have  pointed  out 
the  actual  line  of  reasoning  upon  which  the  difference  in  re- 
sults rests.  It  is  not  to  be  supposed  that  all  results  can  be 
reconciled  or  that  any  generalization  can  be  made  under  which 
they  could  be  reconciled. 

TITLE  IV. 

CASES    ILLUSTRATING    THE    APPLICATION    OF    SOME    OF    THE 

FOREGOING   PRINCIPLES— PARTICULARLY   THE   RULE 

AGAINST   DISTURBING   THE   PLAIN   MEANING. 

§  134.  Introductory:  The  central  point  in  the  theory  of 
legal  interpretation  is  whether  the  objects  and  purposes  of  the 
inducement — what  Wigram  calls  the  "meaning  of  the  testator" 
as  distinguished  from  "what  his  words  mean," — what  others 
have  called  the  "intent"  as  distinguished  from  "meaning," — 
what  Mr.  Wigmore  calls  the  "will"  as  distinguished  from  the 
"sense" — may  be  used  as  the  subject  matter  of  interpretation 
or  as  a  standard  of  interpretation,  or  to  what  extent  they  may 
be  used  to  prove  a  special  individual  standard  of  interpretation. 

The  cases  relating  to  the  description  of  property  devised  are 
especially  useful   in  furnishing  the  answers  to  these  questions. 

§  135.  ( 1 )  Description  of  property  devised  —  Where  the 
description  of  the  land  devised  is  precisely  and  in  aJl  particu- 
lars applicable  to  an  existing  piece  of  land  no  ambignity  arises 
and,  though  the  extrinsic  evidence  shows  beyond  question  a 
mistake  in  using  the  description  expressed,  that  description 

"j  Sec   Mr.    Phipson  's   article,   id., 
257. 

18;-; 


§135]  INTERPRETATION    OF   WILLS  [Ch.  VII 

must  prevail  as  a  matter  of  construction:  In  such  a  case  the 
language  employed  was  used  with  reference  to  the  ordinary- 
standard  of  usage.  It  is  sensible  with  reference  to  extrinsic 
circumstances.  The  difficulty  is  one  of  mistake.  If  no  remedy 
is  permitted  for  mistake  and  the  question  becomes  purely  one 
of  construction  the  problem  must  be  solved  in  favor  of  the 
meaning  of  the  words  according  to  the  usual  and  ordinary 
primary  meaning.  This  is  the  proposition  of  Kurtz  v.  Hilmer:^^ 
In  that  case  a  testator  devised  to  James  "The  south  half  of  the 
east  half  of  the  south  quarter,  Section  31,  in  Township  35, 
Range  10,  containing  forty  acres,  more  or  less."  In  a  suit  for 
partition  by  one  of  the  heirs  at  law  of  the  south  half  of  the 
south  half  of  the  southeast  quarter  of  Section  32,  Township  35, 
Range  10,  containing  forty  acres,' James  offered  to  prove  that 
at  the  time  of  the  death  of  the  testator  he  was  in  the  actual 
possession  of  the  forty  acre  tract  sought  to  be  partitioned  as 
tenant  of  the  deceased  and  "that  the  draftsman  of  the  will,  by 
mistake,  inserted  the  word  'one'  after  the  w^ords  'Section  thirty' 
instead  of  'two'  so  as  to  bequeath  to  James  land  in  Section 
thirty-one  instead  of  Section  i\\\v\y-two."  The  evidence  was 
rejected  and  this  was  affirmed.  It  is  submitted  that  the  result 
reached  is  a  correct  application  of  the  principles  already  set  out. 
In  the  first  place,  it  should  be  noted  that  the  description  as 
written  does  not  refer  in  any  way  to  the  land  described  as  land 
hclonging  to  the  testator.  Hence  there  is  no  ambiguity  arising 
from  the  face  of  the  Avriting  taken  in  connection  with  the  ex- 
ternal facts.  The  testator  has  devised  forty  acres  in  Section  31 
and  there  was  such  land  as  he  described.  The  offer  of  proof  was 
merely  an  oft'er  to  show  that  the  objects  and  purposes  of  the 
inducement  sought  a  different  result.  But  such  objects  and 
purposes  were  not  relevant  as  a  subject  matter  of  interpretation 
or  as  a  standard  of  interpretation.  Nor,  as  they  were  offered, 
were  they  relevant  to  indicate  that  the  testator  in  using  the 
figure  31  was  employing  any  special  individual  standard  of  in- 
terpretation—as if  he  had  been  using  31  as  a  sort  of  cipher  code 

3«.55  111.  514.     This  case  has  been  Williams  v.  Williams,  189  111.   500; 

followed  by  our   Supreme  Court  in  Lomax    v.     Lomax,    218    111.    629; 

the    following:    Bishop    v.   Morgan,  Graves  v.  Eose,  246  111.  76;  Clancy 

82  111.  .351;  Bowen  v.  Allen,  113  111.  v.   Clancy,  250   111.   297;    Stevenson 

53;    Bingcl    v.   Volz,   142    111.    214;  v.  Stevenson,  285  111.  486,  489. 

134 


Cn.  VII]  PRINCIPLES    OF    INTERPRETATION  [^  '^'i'i 

niiiiil)C'r  for  32.  Iiideod,  the  evidence  was  in  terms  olTered  to 
prove  "mistake"  on  the  part  of  tlie  testator,  whieli  meant  that 
the  oiferer  admitted  that  the  testator  liad  used  the  figure  ?A  in 
its  ordinary  and  usual  meaning  hut  liad  done  so  by  mistake. 
No  question,  therefore,  of  interpretation  of  tlie  writing  arose  as 
a  result  of  the  offer.  The  only  (luestion  presented  was  whether 
a  will  can  be  reformed  in  equity  for  mistake.  The  court  assumed 
that  this  could  not  be  done. 

§  136.  Where,  however,  the  description  of  the  land  devised 
is  not  precisely  and  in  all  particulars  applicable  to  an  existing 
piece  of  land,  the  description  is  not  sensible  with  reference  to 
the  extrinsic  circumstances  and  that  part  of  the  description 
which,  in  view  of  admissible  extrinsic  circumstances,  appears 
to  be  false  may  be  rejected  under  the  rule  "falsa  demonstratio 
non  nocet":  Thus,  where,  along  with  the  description  of  land 
which  the  testator  never  owned,  there  is  an  added  designation 
of  the  land  devised  as  "my  homestead,""*^  "my  house  and 
lot,"  38  "two  lots  of  land  known  as  the  house  lot  and  mill  lot,"  ^^ 
"Hays'  farm,"  ■*"  "home  farm  containing  200  acres,"  ■'^  property 
"which  I  now^  own"  or  "belonging  to  me,"  *-  or  "a  part  of  my 
estate,"  ^3  the  description  is  not  precisely  and  in  all  particulars 
applicable  to  an  existing  piece  of  land.  Therefore  an  ambiguity 
arises  and  that  part  of  the  description  which  is  false  may  be 
rejected,  leaving  a  balance  to  be  used,  if  possible,  to  designate 
some  tract  of  land. 

§  137.  The  principal  difficulty  is  in  determining  whether  or 
not  the  description  of  the  land  devised  is  precisely  and  in  all 
particulars  applicable  to  an  existing  piece  of  land:  Thus  in 
Loiiiax  V.  LoDia.r,*-*  there  was  a  devise  of  the  "southwest  frac- 
tional quarter  of  Section  24,  T.  40,  containing  about  55.87  acres 
more  or  less."  There  was  no  such  fractional  quarter  in  Town- 
ship 40  and  the  only  fractional  quarter  in  To^\mship  40  con- 
taining about  55.87  acres  more  or  less  was  one  in  Section  14  and 
it  was  owned  by  the  testator.     Under  these  circumstances  it 

37  Morrall  v.  Morrall,  236  111.  640.  *-  Douglas  r.  Bolinger,  228  111.  23; 

38Bowen  v.  Allen,  113  111.  53.  Daniel  v.  Crusenbury,  279  111.  367; 

39  Swift  V.  Lee,  65  111.  336.  Stevenson  i-.  Stevenson,  285  111.  486. 
■•oEmmert  v.  Hays,  89  111.  11.  43  Decker  r.  Decker,  121  111.  341. 

"Lawrence  v.  Lawrence,  255  111.  **  218  111.  629. 

365. 

135 


§137]  INTERPRETATION    OF    WILLS  [Ch.  VII 

would  seem  that  the  description  used  did  not  apply  precisely 
and  in  all  particulars  to  any  land.  Hence  an  ambiguity  arose 
and  the  false  portion  which  would  be  "  24 "  of  Section  24  could 
be  stricken  out,  leaving  as  the  description  the  southwest  frac- 
tional quarter  in  To^^^lship  40  containing  about  55.87  acres  more 
or  less.  This  would  have  been  sufficient  to  designate  the  frac- 
tional quarter  in  Section  14.  The  holding  of  the  court  that 
there  was  no  ambiguity  must  have  been  based  upon  the  opinion 
that  the  description  as  contained  in  the  will  was  precisely  and  in 
all  particulars  applicable  to  an  existing  piece  of  land.  The 
court's  conclusion  is,  therefore,  with  deference,  doubted. 

Suppose,  however,  no  super-added  descriptive  phrase  (such  as 
''belonging  to  me'')  is  explicitly  used.  Suppose,  for  instance, 
there  is  simply  a  devise  of  Section  1  in  Township  7,  Range  6, 
and  that  there  is  such  a  tract  of  land  but  that  it  was  never 
owned  by  the  testator.  If  the  additional  descriptive  phrase 
"belonging  to  me"  cannot  by  any  process  of  interpretation  be 
found  in  the  four  corners  of  the  instrument,  the  description  is 
precisely  and  in  all  respects  applicable  to  an  existing  tract  of 
land.  There  is  no  ambiguity  and  therefore  no  ground  for  any 
departure  from  the  primary  meaning.  If,  on  the  other  hand,  by 
any  legitimate  process  of  construction  the  additional  descriptive 
phrase  "belonging  to  me"  can  be  found  expressly  included,  an 
ambiguity  does  arise  and  the  false  part  may  be  rejected  and  the 
balance  construed. 

The  apparently  conflicting  decisions  of  our  Supreme  Court 
are  due  to  the  fact  that  different  judges  and,  in  some  instances, 
the  same  judges  at  different  times,  incline  one  way  or  the  other 
on  the  question  whether  the  context  of  a  particular  instrument 
justifies  the  finding  that  the  words  "belonging  to  me"  are 
actually  and  expressly  contained  in  the  instrument  as  part  of 
the  description,  though  such  words  are  in  a  physical  sense 
absent. 

The  results  of  the  authorities  as  they  now  stand  appear  to  be 
as  follows: 

1.  If  there  is  nothing  on  the  face  of  the  instrument  except 
the  legal  description  of  land,  the  fact  that  the  testator  never 
o^vned  that  land,  the  further  fact  that  he  purported  to  devise 
t  he  exact  number  of  acres  which  he  owned  but,  if  the  description 
be  taken  as  it  stands,  he  would  die  intestate  as  to  all  or  all  but 

136 


Ch.  VIIJ  I'RINCII'LES    UF    IXTERI'RETATION  [§1'jB 

a  few  acres  which  he  owned,  does  not  warrant  the  court  in 
interpreting  the  will  as  including  the  super-added  words  of 
description  "belonging  to  me. "^^ 

2.  On  the  other  liand,  to  some  extent,  which  defies  any  precise 
statement,  the  court  may,  upon  a  special  context,  find  sudi  a 
situation  as  warrants  the  determination  by  it  that  the  words 
"belonging  to  me''  are  an  actually  expressed  part  of  the  de- 
scription, although  such  words  are  not  explicitly  set  out  in 
the  instrument.  Thus,  in  Alford  v.  Bennett;**'  where  the  tes- 
tator devised  all  his  land  by  special  descriptions  except  the 
odd  amount  of  twenty-five  acres  in  the  northwest  (juarter  of 
Section  17,  and  where  by  a  previous  clause  he  had  devised  fifteen 
acres  from  that  (|uar1er  section  leaving  still  undisposed  of 
tAventy-five  acres,  the  will  was  consti-ued  as  expressly  referring 
to  land  which  the  testator  owned,  so  that  when  he  devised 
"twenty-five  acres  in  the  northeast  quarter  of  Soction  17'' 
the  "northeast"  could  be  rejected  as  false. 4" 

§  138.  After  part  of  a  description  has  been  rejected  under 
the  rule  of  "falsa  demonstratio"  the  meaning  of  what  is  left 
must  be  construed  and  given  effect  according  to  the  usual 
principles  of  construction:  In  many  cases  this  produces  a 
satisfactory  result.'*^  In  some  cases,  however,  the  rejection  of 
what  is  false  in  the  description  may  leave  the  description  so 

<3  Stevenson  v.  Stevenson,  285  111.  *^  See  also  Whitcomb  v.  Uodnian, 
486;  Clancy  v.  Olaney,  250  IJl.  297;  136  111.  116  (where  the  descriptions 
Graves  i'.  Eose,  246  111.  76;  Lomax  overlapped  if  taken  literally  and 
r.  Lomax,  218  111.  629;  Williams  r.  were  therefore  contradictory)  ;  Huff- 
Williams,  189  III.  500;  Bingel  v.  man  v.  Young,  170  111.  290  (where 
Volz,  142  111.  214;  Bowen  v.  Allen,  an  odd  number  of  acres  was  referred 
113  III.  53;  Bishop  v.  Morgan,  82  to);  Vestal  v.  Garrett,  197  111.  398. 
111.  351;  Kurtz  v.  Hibner,  55  111.  514.  *»  Swift  r.  Lee,  65  111.   336;    Em- 

If    the   following    eases    hold    the  mert  v.  Hays,  89  111.  11;  Decker  v. 

contrary  they  must  be  regarded  as.  Decker,   121   III.   341 ;    Whitcomb   i'. 

for    the  time   being   at   least,   over-  Rodman,   156  111.   116;    Huffman   r. 

i-uled:    Felkel    v.    O'Brien,    231    111.  Young,  170  111.  290;   Vestal  v.  Gar- 

329;   CoUins  v.  Capps,  235  111.  560;  lett,   197   111.   398;    Douglas    r.   Bo] 

Gano   V.  Gano,  239  111.   539.  inger,  228  111.  23;  Felkel  r.  O'Brien, 

As  to  the  ad\-isability  and  method  231   111.  329;   CoUins  r.   Capps,  235 

of  changing  the  rule  now   in   force  111.  560;  Morrall  r.  Morrall,  236  111. 

see  2  111.  Law  Bulletin  175,  286;  14  640;    Gano    v.   Gano,    239    111.   539; 

111.  Law  Rev.  147.  Lawrence  v.  Lawrence,  255  111.  365; 

i<i  279  111.  375.  Daniel  r.  Crusenbury,  279  111.  367. 

137 


§  138]  rNTTERPRETATION    OF   WILLS  [Cn.  VII 

mutilated  that  it  does  not  describe  anything.  In  that  case  the 
devise  fails  for  uncertainty.-^^ 

Patch  V.  White,^^  is  the  leading  example  of  a  sound  but 
extremely  ingenious  handling  of  what  was  apparently  a  hope- 
lessly mutilated  description  so  that  it  expressed  a  sensible  and 
an  appropriate  meaning.  In  that  case  the  testator  devised  to 
his  brother  "Lot  numbered  six  in  Square  four  hundred  three  to- 
gether with  the  improvements  thereon  erected  and  appurte- 
nances thereto  belonging."  The  will,  itself,  and  the  extrinsic 
facts  disclosed  the  following:  The  testator  referred  to  the  lots 
devised  as  his  own  property  in  the  opening  words  of  the  will 
as  follows:  "and  touching  worldly  estate,  wherewith  it  has 
pleased  the  Almighty  God  to  bless  me  in  this  life  I  give,  devise, 
and  dispose  of  the  same  in  the  following  manner  and  form." 
It  appeared  that  the  lot  described  did  not  belong  to  the  testator 
and  never  had  and  that  there  were  no  improvements  upon  it. 
Plainly,  therefore,  the  description  taken  altogether  was  inapt. 
An  ambiguity  arose.  The  first  thing  the  court  had  to  do  was 
to  decide  what  part  of  the  description  was  false  and  what  part 
true.  It  naturally  decided  that  that  part  Avas  false  which  re- 
ferred to  lot  six  in  square  four  hundred  three.  The  false  part 
of  the  description  having  beeii  rejected  the  devise  stood  as  the 
devise  of  a  lot  owned  by  the  testator  at  the  date  of  his  will 

number  in  square  which  was  improved.     Noav, 

the  difficulty  which  arose  was  whether  this  was  a  sufficiently 
certain  description  to  make  identification  of  any  lot  possible. 
If  the  devise,  as  quoted,  had  stood  alone  with  nothing  else  in 
the  instrument  it  would  certainly  have  been  too  uncertain  to 
enable  any  lot  to  be  identified  and  the  devise  would,  therefore, 
have  failed.  From  the  rest  of  the  will,  however,  it  appeared 
that  every  other  lot  which  the  testator  owned  at  the  date  of 
the  will  was  specifically  devised  and  expressly  described  with 
the  exception  of  lot  three  in  square  four  hundred  six  and  that 
this  lot  three  was  improved  Avith  a  dwelling  house.  It  also 
appeared  that  by  a  subsequent  clause  of  the  will  the  testator 
had  devised  the  balance  of  his  real  estate  Avhich  he  believed  to 
consist   of   certain   lots,   describing  them,   thereby  contributing 

49Bingel   v.    Volz,  •  142    111.    214;  so  117  U.  S.  210. 

Heller  v.  Heller;  147  111.  621;  Clan- 
cy V.  Clancy,  250  111.  297.- 

138 


ClI.  VIIJ  I'UINCII'LES    OF    INTERPRETATION  [§139 

an  expressed  declaration  in  the  will  that  the  descriptions  of 
the  lots  devised  covered  every  lot  he  then  owned.  The  further 
residuary  clause  related  only  to  personalty.  Under  these  cir- 
cumstances a  devise  of  lot in  square  having  im- 
provements was  as  sufficient  to  identify  the  lot  as  if  it  had 
said  "my  only  remaining  lot"  or  "my  only  lot  left."  The 
court  very  properly  held,  therefore,  that  the  will  was  to  be  inter- 
preted to  convey  lot  throe  in  scjuare  four  hundred  six. 

It  should  be  noticed  that  the  court  did  not  use  any  evidence 
of  the  objects  and  purposes  of  the  inducement,  either  as  a 
subject  of  interpretation  or  as  a  standard  of  interpretation. 
Indeed,  the  extrinsic  evidence  used  can  hardly  be  said  to  have 
been  evidence  of  the  objects  and  purposes  of  the  inducement 
at  all.  Nor  did  the  court  con.strue  "lot  six,  square  four  hundred 
three"  as  meaning  "lot  three  square  four  hundred  six."  To 
have  done  so  the  court  must  have  found  that  lot  six,  square 
four  hundred  three,  was  a  code  expression  for  something  en- 
tirely different— that  the  testator  was  using  the  figures  accord- 
ing to  an  individual  code  standard.  There  was  no  evidence  at 
all  of  anything  of  the  sort.  The  inference  was  that  the  testator 
had  used  the  figures  in  their  ordinary  and  usual  significance 
and  that  he  had  done  so  by  mistake.  This  mistake,  as  such, 
could  not  be  rectified  by  a  court  of  equity.  In  spite  of  some 
inadvertent  phrases  about  the  "correction"  of  errors  or  "slips 
of  attention"  the  court  did  not  undertake  the  establishment  of 
any  jurisdiction  in  equity  to  correct  mistakes*  in  wills.  What 
the  court  did  do  was  this:  it  found  a  description  which  taken 
altogether  did  not  fit  the  extrinsic  facts.  Then  it  rejected  that 
which  appeared  on  the  evidence  to  be  false  and  inapplicable. 
After  this  it  still  found  sufficient  in  the  whole  instrument  to  de- 
scribe and  identify  lot  three,  square  four  hundred  six,  as  the 
property  devi.sed. 

§139.  (2)  Identification  of  the  devisee:  Where  the  de- 
scription of  the  devisee  is  precisely  and  in  all  particulars  ap- 
plicable to  an  existing  person,  and  one  only,  no  ambiguity  arises; 
and  even  though  the  extrinsic  evidence,  however  strong,  shows  a 
mistake  in  using  the  description,  as  a  matter  of  construction 
simply  the  description  as  made  must  prevail. 

Where,  however,  the  description  of  a  devisee  is  not  precisely 
and  in  all  particulars  applicable  to  any  existing  person  an  ani- 

139 


^  llOj  INTERPRETATION    OP   WILLS  [CH.  VII 

biguity  arises  and  extrinsic  cirt'iimstances  may  be  resorted  to 
for  the  purpose  of  determining  tiiat  the  testator  used  a  standard 
of  interpretation  which  justifies  the  use  of  the  description  in 
question  in  a  secondary  meaning.  Thus,  where  several  charities 
were  designated  as  legatees  but  no  corporation  or  association 
precisely  answered  the  description  used,  it  was  proper  to  examine 
the  extrinsic  circumstances  to  determine  what  institutions  were 
designated  by  the  names  used.'^^ 

50  where  the  description  of  the  devisee  is  precisely  and  in  all 
particulars  applicable  to  two  or  more  persons  an  ambiguity 
arises  and  extrinsic  circumstances  may  be  resorted  to.  Thus  if  the 
devise  is  to  A.  B.  and  there  are  two  of  the  same  name,  the  ex- 
trinsic circumstances  may  be  gone  into,  but  if  they  show  that  one 
is  the  father  and  the  other  the  son,  that  circumstance  will  raise 
a  prima  facie  inference  that  the  father  is  meant  rather  than  the 
son.^- 

§  140.  (8)  Who  are  included  in  the  words  of  general  de- 
scription: Where  the  general  description  of  devisees  taken 
in  its  primary  meaning  is  sensible  with  reference  to  extrinsic 
circumstances  because  some  one  ansAvers  the  primary  meaning 
of  the  description,  no  ambiguity  arises  and  so  far  as  any  ques- 
tion of  construction  is  concerned  the  primary  meaning  must 
prevail,  even  though  the  extrinsic  circumstances  shoAV  a  mistake 
in  not  qualifying  the  designation  so  as  to  include  others.  Thus, 
if  there  is  a  gift  to  children  and  there  are  legitimate  children, 
they  and  they  alone  will  take  and  the  illegitimates  will  be  ex- 
cluded even  though  the  extrinsic  evidence  showed  that  they 
and  they  alone  were  intended. 

Even  where  there  were  no  other  than  illegitimate  children, 
when  the  will  took  effect  or  at  any  other  period,  so  that  the  gift, 
if  confined  to  legitimate  children  would  fail  for  want  of  objects, 
the  primary  meaning  of  ''children"  was  adhered  to  ^^  because 
the  word  as  used  by  the  testator  was  still  sensible  in  its  reference 
to  extrinsic  circumstances,  since  at  the  time  it  was  used  it  might 

51  Preachers'  Aid  Society  v.  Eng-  =3  Smith  v.  Garber,  286  111.  67, 
land,  106  111.  125;  Missionary  Soci-  69,  quoting  with  approval  2  Jarnian 
ety  V.  Mead,  131  IlL  338.                        on   Wills,  217. 

52  Graves  v.  Golwell,  90  111.  612; 
Fyffe  V.  Fyffe,  106  111.  646;  Doty  v. 
Doty,  159  111.  46. 

140 


(',,    Vnj  i.RINCIPLES   OP    INTERPRETATION  Ul-*! 

liave  had  reference  to  a  future  possibility  of  marriage  and  the 
birth  of  legitimate  children.     It  was  only,  therefore,  when  it 
could  be  shown  that  the  illegitimate  children  had  become,  accord- 
ing to  a  usage  indulged  in  by  the  testator  himself,  "children" 
of  the  person  named  that  they  were  regarded  as  designated.^* 
Section  2  of  the  Act  on  Descent-"  which  provides  that  an  "ille- 
gitimate child  shall  be  the  heir  of  its  mother,"  has  now,  how- 
ever, been  held  so  far  to  place  the  illegitimate  child  in  the  cate- 
gory of  lawful  children  of  the  mother,  that  it  is  at  least  ambigu- 
ous whether  in  the  will  of  the  mother's  aunt  devising  a  re- 
mainder to  the  "child  or  children"  of  the  mother,  the  illegiti- 
mate child  is  referred  to.-'«     This  ambiguity  makes  a  resort  to 
extrinsic  circumstances  possible,  so  that  where  they  indicated 
that  the  testatrix  knew  of  the  existence  of  the  illegitimate  child 
when  her  will  was  made  and  that  the  age  of  the  parent  made  the 
existence  of  legitimate  children  doubtful,  the  illegitimate  child 
was  included  in  a  devise  to  the  child  or  children  of  the  mother.^" 
§  141.     (4)     Where  the  question  is  as  to  the  estate  created 
or  the  nature  of  a  contingency:     Where  the  primary  meaning 
of  the  words  used  is  sensible  with  reference  to  the  context  and  the 
extrinsic  circumstances,  that  meaning  must  as  a  matter  of  con- 
struction prevail,  even  though  the  extrinsic  evidence  shows  a 
mistake  in  the  estate  created  or  the  contingency  described. 

Where,  however,  the  primary  meaning  gives  rise,  in  con- 
nection with  the  context  alone  or  the  context  and  the  extrinsic 
circumstances,  to  an  incongruity  or  absurdity  so  great  as  to  make 
the  primar>^  meaning  fairly  insensible,  an  ambiguity  arises  and 
the  extrinsic  circumstances  may  be  used  to  disclose  the  tenor 
of  the  standard  which  the  testator  actually  employed.^^ 

Even  where  the  context  alone  of  the  instrument  gives  rise  to 
an  evenly  balanced  argument  for  the  secondary  meaning  as 
against  the  primary,  an  ambiguity  arises,  and  the  extrinsic  cir- 
cumstances which  disclose  the  tenor  of  the  standard  which  the 

54  Smith  V.  Garber,  286  111.  67,  au  incongruity  or  absurdity  as  is 
70,  quoting  with  approval  2  Under  referred  to  is  usually  sufficient  to 
hill  on  Wills,  §  570.  See  also  Dick-  justify  the  court  in  adopting  a  sec- 
son  V.  Dickson,  36  111.  App.  50?..  ondary  meaning  on  the  context  with- 

55  R.  S.  1874,  ch.  39.  out  any  resort   to  extrinsic  cireum- 
50  Smith  r.  Garber,  286  111.  67.  stances.    See  post.  §§205.  20G,  r.72. 

57  Id.  600,  602. 

58  It  should  be  observed  that  such 

141 


§142]  IxVTElU'KETATIOX    OF    WILLS  |Ch.  VII 

testator  actually  employed  may  be  resorted  to,  even  though  such 
circumstances  also  tend  to  show  the  intention  of  the  induce- 
ment. This  is  the  proposition  of  Abrahams  v.  Sanders.^^  There 
the  question  was  one  of  construing  the  nature  of  a  contingency 
on  which  a  gift  over  took  effect.  After  finding  that  special 
elements  of  the  context  made  at  least  an  even  balance  between 
the  pi-imary  and  secondary  meanings  of  the  phrase  in  question, 
the  court  went  extensively  into  the  effect  of  the  surrounding 
circumstances  to  establish  the  tenor  of  the  standard  actually 
used  by  the  testator  which  justified  the  secondary  meaning. 

It  would  seem  to  follow  that  where,  upon  a  given  context, 
the  considerations  were  evenly  balanced  for  and  against  two 
meanings,  neither  of  which  could  be  said  to  be  primary  or  sec- 
ondary, extrinsic  circumstances  which  disclosed  the  tenor  of  the 
standard  which  the  testator  actually  employed  might  be  used 
even  though  the  same  circumstances  tended  to  show  the  inten- 
tion of  the  inducement. 

TITLE  V. 

COMMENTS   UPON   THE  "OBJECT   OF   INTEEPKETATION"   AND 
UPON  "STRICT"  AND  "LIBERAL"  CONSTRUCTIONISTS. 

§  142.  The  object  of  interpretation — What  part  does  the 
"intention"  of  the  inducement  play:  Wigram's  view  was 
that  the  object  of  interpretation  was  to  find  "the  meaning  of  the 
testator's  words"  as  distinguished  from  "what  he  meant."  He 
attempted  rigidly  to  exclude  all  references  to  the  "intent"  of 
the  inducement  as  irrelevant  and  immaterial.  Then  came  Haw- 
kins who  insisted  that  the  "intent"  of  the  inducement  was  a 
relevant  and  material  element  of  interpretation  of  the  words 
used.  Both  are  right,  and  yet  both  positions  are  so  far  incom- 
plete as  to  be  misleading  if  not  actually  incorrect. 

(1)  The  subject  matter  of  interpretation  is  the  writing  or  the 
words  used  and  not  the  inducement  to  the  writing.  So  far 
Wigram  is  right  and  Hawkins,  if  he  means  to  assert  the  con- 
trary, is  wrong. 

(2)  The  standard  of  interpretation  may  be  eitlier  that  of  the 
normal  user  of  the  language  or  a  special,  individual  standard 
of  the  writer  himself.    It  cannot  be  the  inducement  to  the  writ- 
es 274  111.  452. 

142 


Ch.  VII]  PFtlNCII'LEH    OF    INTERPRETATION  [§142 

ing.    Again  Wigrani  is  correct  and,  if  Hawkins  means  to  assert 
the  contrary,  he  is  wrong. 

(3)  In  ascertaining  wliether  the  writer  has  nsecl  a  special  indi- 
vidual standard  and  wliat  the  tenor  of  tliat  standard  is,  the  intent 
of  the  inducement  may  become  a  relevant  and  material  fact. 
So  far  as  Hawkins  recognizes  that  the  intention  of  the  induce- 
ment is  relevant  to  the  process  of  interpretation  in  this  precise 
way  he  is  right.  Wigram,  if  he  refuses  to  recognize,  even  as  a 
theoretical  proposition,  any  use  of  the  intent  of  the  inducement 
for  this  purpose,  was  in  error. 

(4)  The  intent  of  the  inducement  having  be(;ome  relevant  and 
material  to  determine  whether  the  testator  has  used  a  special 
standard  of  interpretation  and  to  determine  what  that  standard 
might  be,  the  courts  have,  for  practical  reasons,  limited  the  scope 
of  the  inquiry  into  that  intent.  In  the  statement  of  the  practical 
rules  which  limit  the  scope  of  the  court's  inquiry  into  the  "in- 
tent" of  the  inducement  as  they  have  been  worked  out  by  the 
English  cases,  Wigram  excels. 

(5)  The  objects  of  interpretation  of  unilateral  writings  are 
thus  phrased  by  Professor  Graves:  *"'  "What  is  it  that  the  judi- 
cial expositor  seeks  to  ascertain — is  it  the  meaning  of  the  words 
or  the  meaning  of  the  writer?  The  question  is  frequently  put 
in  this  way,  as  if  the  disjunction  were  complete,  and  the  answer 
must  be  either  the  one  or  the  other.  We  answer,  neither.  Not 
the  meaning  of  the  words  alone,  nor  the  meaning  of  the  writer 
alone,  but  the  meaning  of  the  words  as  used  by  the  writer.  It  is 
not  the  meaning  of  the  words  in  the  abstract,  for  the  meaning  of 
words  varies  with  the  circumstances  under  which  they  are  used ; 
and  not  the  meaning  of  the  writer  apart  from  his  Avords,  for 
the  ({uestion  is  one  of  interpretation,  and  what  the  writer  meant 
to  have  said,  but  did  not,  is  foreign  to  the  inquiry.  *  *  *  We 
must  seek  the  meaning  of  the  writer,  but  we  must  find  it  in  his 
words ;  and  w^e  must  seek  the  meaning  of  the  words,  but  it  must 
be  the  meaning  of  his  words — of  the  words  as  he  has  used  them — 
the  meaning  which  they  have  'in  the  mouth  of  this  party'  to  use 
the  language  of  C.  B.  Eyre.'' 

This,  however,  does  no  more  than  repeat  the  proposition  that 
the  individual  standard  of  the  testator  may  be  used.     That  is  an 

«"  28  Am.  Law  Rev.  321,  323. 

143 


Jj  143]  INTERPRETATION    OF    WILLS  [Ch.  VII 

important  beginuing,  but  it  is  only  a  beginning.  The  moment 
one  attempts  to  produce  proof  of  the  individual  standard  by 
extrinsic  evidence  he  runs  into  the  difficulty  that  he  is  in  most 
cases  in  fact  introducing  the  object  and  purposes  of  the  induce- 
ment as  a  rival  subject  matter  or  standard  of  interpretation. 
The  real  problem  of  the  whole  subject  is  to  determine  how  far 
the  individual  standard  may  be  shown  and  the  inducement  still 
be  prevented  from  becoming  the  real  subject  matter  or  standard 
of  interpretation. 

!<  143.  Strict  and  liberal  constructionists :  ' '  Strict ' '  and 
"liberal"'  as  applied  to  persons  interpreting  written  instruments 
are  not  much  more  than  epithets  provoked  in  the  heat  of  con- 
troversy. 

In  the  practice  of  the  art  of  interpretation,  there  must,  in 
many  cases,  be  a  fair  ground  of  difference  of  opinion  by  two 
experts,  both  adhering  strictly  to  all  the  rules  and  principles  im- 
posed upon  them  by  the  substantive  law  of  interpretation  and 
the  substantive  law  of  evidence.  This  is  true  because  much  of 
the  art  in  reaching  a  conclusion  depends  upon  the  skilful  dis- 
covery and  balancing  of  considerations  on  each  side.  It  would 
be  improper  to  say  of  those  who  did  not  agree  because  of  dif- 
ferences arising  upon  the  balancing  of  all  the  considerations 
on  each  side,  that  one  was  ' '  liberal ' '  and  the  other  ' '  strict. ' '  Both 
might  be  equally  ' '  liberal ' '  or  equally  ' '  strict. ' '  The  fact  is  they 
merely  differ  in  their  judgment  of  the  weight  to  be  given  oppos- 
ing considerations  on  each  side. 

The  judge  who  regards  the  rule  against  disturbing  a  plain 
meaning  as  a  rule  of  law  (following  Wigram)  might  perhaps  be 
called  a  strict  constructionist,  although  he  is  not  so  much  a  strict 
constructionist  as  he  is  a  believer  in  the  correctness  of  a  certain 
rule  of  law  of  construction.  His  associate  who  accepts  Lord 
Bowen's  view  that  the  rule  against  disturbing  a  plain  meaning 
is  merely  "a  counsel  of  caution"  might  perhaps  be  regarded  as 
a  "liberal"  although  he  is,  after  all,  only  a  believer  in  a  differ- 
ent rule  regarding  the  substantive  law  of  interpretation. 

There  is,  however,  a  wide  gulf  between  some  judges  who  call 
themselves  "liberal"  and  those  whom  "liberal"  judges  call 
"strict  constructionists."  The  so-caUed  strict  constructionist 
is  frequently  one  who  is  attempting  to  practice  the  art  of  in- 
terpretation a(,'Cording  to  the  rules  of  the  substantive  law  of 

144 


CH.  VII]  PRINCIPLES    OF    INTERPRETATION  [§  143 

interpretation  and  the  rules  of  the  substantive  law  of  evidence 
which  have  beeerae  settled.  If  the  law  is  settled  against  the 
rule  which  forbids  the  nse  of  extrinsic  evidence  to  disturb  a  plain 
meaning,  he  accepts  that  as  the  rule  of  law  and  acts  aci-ordingly 
whether  he  thinks  the  law  should  be  otherwise  or  not.  When  a 
rule  of  law  of  interpretation  tells  him  that  the  "intention"  of  the 
inducement  must  not  be  made  the  subject  matter  of  interi)retation 
or  used  as  a  standard  of  interpretation  he  seeks  to  obey  that 
rule,  whether  he  personally  approves  of  it  or  not.  The  so-called 
"liberal,"  on  the  other  hand,  is  too  often  attemi)ting  to  find  a 
Avay  to  beat  the  recognized  rules  of  the  law  of  interpretation  and 
the  recognized  rules  of  the  laAV  of  evidence.  While  giving  lip 
service  to  these  rules  he  may  yet  violate  the  most  fundamental  of 
them  all.  He  may,  in  fact,  use  all  the  extrinsic  circumstances 
that  can  be  secured  in  the  case,  and  frequently  a  few  conjectures 
besides,  to  build  up  a  plausible  "intention"  of  the  inducement, 
which  becomes,  under  the  assertion  that  "the  intention  of  the 
testator  is  the  pole  star  in  the  construction  of  wills,"  a  rival  sub- 
ject matter  of  interpretation,  or  at  least,  a  rival  standard  of 
interpretation.  That  one  practicing  the  art  of  interpretation 
under  the  rules  of  law  should,  while  acting  thus,  whether  in  a 
slight  degree  or  unconsciously  or  to  an  extreme  degree  and 
brazenly,  be  permitted  unchallenged  to  shelter  himself  under 
the  title  of  "liberal"  is  a  tribute  to  the  paucity  of  our  epithetical 
vocabulary. 


Kales  Fut.  Int.  — 10  ^45 


CHAPTER  VIII. 

SUGGESTIONS  CONCERNING  THE  PRACTICE  OF  THE 
ART  OF  INTERPRETATION. 

§  144.  There  is  an  art  of  interpretation:  An  artist  wlio 
paints  a  landscape  finds  in  it  a  subject  matter  of  interpretation. 
His  standard  is  what  he  sees  plus  his  conception  of  beauty.  In 
his  paint  and  canvas  he  finds  the  materials  for  expressing  his 
interpretation.  Any  one  can  furnish  the  paint  and  the  canvas. 
IMany  can  cultivate  their  powers  of  sight  and  add  to  it  a  concep- 
tion of  beauty.  Only  a  few  attain  the  successful  practice  of  the 
art  of  achieving  upon  the  canvas  an  interpretation  of  what  is  ob- 
served. So  it  is  to  some  extent  with  the  practice  of  the  art  of 
interpreting  writings.  The  subject  matter  and  possible  stand- 
ards of  interpretation  are  easily  comprehended  when  stated. 
The  possible  sources  from  which  the  tenor  of  the  standard  is  to 
be  derived  may  be  classified  without  much  difficulty.  But  the 
process  of  interpretation,  namely,  the  process  of  actually  ascer- 
taining the  standard  from  the  available  sources  and  applying 
that  standard  to  the  subject  matter  so  as  to  achieve  a  sound  in- 
terpretation of  the  writing  is,  in  many  cases  at  least,  an  art  more 
successfulh'  practiced  by  some  than  by  others. 

The  process  of  interpretation  is  not  reducible  to  dogmatic 
rules.  It  may  be  assisted  to  a  slight  degree  by  counsels  of 
caution  and  suggestions  as  to  method.  Practically  all  that  part 
of  the  present  work  which  deals  with  estates  created  and  much 
of  that  dealing  w^th  future  interests  is  an  effort  to  follow  our 
Supreme  Court  in  its  practice  of  the  art  of  interpretation  in 
regard  to  a  considerable  number  of  related  contexts.  In  the 
succeeding  paragraphs  an  attempt  is  made  to  formulate  some 
practical  suggestions  to  be  observed  in  the  performance  of  the 
process  of  interpretation. 

§  145.  Caution  against  indulging  in  speculation  and  con- 
jecture as  to  what  the  testator  intended — the  interpreter  should 
not  infer  what  he  (the  interpreter)  would  have  intended  had 
he  been  placed  in  the  position  of  the  testator:     To  do  so  is  to 

146 


ClI.  \'11I]  AUT    OF    INTEKI'UETATION  [§147 

violate  the  rule  tliat  the  induceineiit  of  the  testator  shall  not 
be  used  as  a  subjeet  matter  or  standard  of  interpretation.  There 
is,  however,  in  most  cases  an  even  j^reatcr  objection  to  such  a 
course  because  the  interpreter  is  not  taking  the  actual  and  ascer- 
tainable inducement  of  the  testator,  but  a  purely  fictitious  in- 
ducement, based  upon  the  interpreter's  <^ucss  as  to  what  the 
testator's  inducement  was — a  guess  based  not  upon  the  peculiari- 
ties and  idiosyncrasies  of  the  testator  but  upon  those  of  the 
interpreter.  Even  where  some  extrinsic  evidence  is  available  it 
is  in  most  cases  too  partial,  too  incomplete,  to  enable  the  inter- 
preter to  do  more  than  guess  as  to  what  the  actual  intent  of 
the  particular  testator's  inducement  may  have  ])een. 

§  146.  In  determining-  the  effect  to  be  given  to  surrounding 
circumstances  (even  when  admissible)  to  support  a  secondary 
meaning,  a  practical  distinction  should  be  observed  between 
the  cases  where  the  difficulty  is  one  of  ascertaining  what  per- 
sons are  to  take  or  what  property  is  conveyed  and  those  where 
the  question  is  what  estate  is  created  or  the  nature  of  a  con- 
tingency: The  ([uestion  of  the  identification  of  the  i)erson  to 
take  or  the  property  devised  is  usually  a  simple  matter.  Once 
the  ambiguity  in  the  language  of  the  instrument  is  found  the 
range  of  choice  and  the  motives  for  it  are  limited  and  the  ex- 
trinsic evidence  is  usually  conclusive.  But  when  the  question 
is  what  estate  is  created  or  the  nature  of  a  contingency  it  is 
not  only  more  difficult  to  find  an  actual  ambiguity  which  justi- 
fies any  resort  to  extrinsic  circumstances  but  the  range  of  choice 
is  so  broad,  the  possible  motives  of  the  inducement  so  various, 
and  the  difficulty  so  likely  to  be  the  result  of  carelessness  or  a 
failure  of  the  testator's  mind  to  work  on  the  problem,  that  the 
practical  value  of  extrinsic  circumstances  to  furnish  a  sound 
basis  for  a  result  must  be  distrusted.  They  are  too  likely  to 
furnish  only  the  basis  for  speculation  and  conjecture. 

§  147.  The  interpreter  should  whenever  possible  inquire 
into  the  primary  and  secondary  meanings  of  words  and  phrases 
with  a  view  to  adhering-  to  the  primary  meaning  unless  the 
secondary  meaning-  is  fairly  required:  It  is  a  convenient 
method  to  reduce  the  problem  of  construction  whenever  possible 
to  a  contest  between  a  given  primary  meaning  and  a  possible  or 
probable  secondary  meaning.  When  this  is  done  it  is  proper  to 
consider  whether  extrinsic  evidence  is  available  under  the  prin- 

147 


J;  148j  INTERPRETATION   OP   WILLS  [Ch.  VIII 

eiples  already  laid  down.^  If  such  evidence  may  be  considered 
the  interpreter  may  then  proceed  to  determine  what  the  avail- 
able evidence  tends  to  show.  He  should  then  balance  all  the 
considerations  of  context  and  extrinsic  circumstances  available 
for  and  against  the  primary  and  secondary  meanings  as  herein- 
after indicated  -  and  reach  a  result. 

§  148.  It  is  an  especially  strong  reason  for  adhering  to  the 
primary  meaning  of  the  language  in  question  as  against  slight 
contextual  elements  and  surrounding  circumstances  support- 
ing a  secondary  meaning,  that  the  difficulty  of  construction 
is  one  upon  which  the  testator's  mind  never  acted  so  that  there 
is  no  actual  intent  of  the  inducement:  Courts  in  their  efforts 
to  justify  a  construction  adopted  on  the  ground  that  they  are 
thereby  effecting  the  "intention"  of  the  testator,  not  infre- 
quently fail  to  observe  in  their  opinions  (especially  those  dealing 
with  the  problems  of  what  future  interests  are  created;  who 
are  included  in  a  general  description ;  or  the  nature  of  a  contin- 
genc.y)  that  the  testator,  while  he  has  expressed  a  meaning,  had 
no  intent  in  the  way  of  inducement  at  all.  The  proof  of  the  ab- 
sence of  any  inducement  is  usually  based  upon  the  fact  that  the 
difficulty  of  construction  arises  by  the  happenijig  of  events  after 
the  testator's  death  which  from  their  nature  and  the  fact  that  the 
testator  did  not  provide  for  them  appear  never  to  have  been  pres- 
ent to  his  mind.-"'  For  instance,  after  a  devise  in  futuro  to  A,  B 
and  C,  suppose  the  testator  provides  that  in  case  of  the  death  of 
any  one  witliout  children  before  the  period  of  distribution  the 
share  of  the  one  so  dying  shall  go  over  to  the  survivors.  A  dies 
first  leaving  children,  then  C  dies  without  children.  Does  B  take 
C  's  share  as  the  survivor,  or  do  the  children  of  A  take  half  and 
B  half?  Here  is  a  situation  upon  which  the  testator's  mind  obvi- 
ously did  not  work.  He  did  not  think  far  enough  ahead  to  pro- 
vide for  it.  There  is  no  actual  intent  of  the  inducement  to 
guide  the  interpreter  even  if  such  intent  of  the  inducement  were 
available.  Obviously  where  courts  can  fairly  say  that  there  was 
no  intent  of  the  inducement  the  process  of  interpretation  should 
exclude  any  consideration  of  extrinsic  circumstances  and  should 
confine  itself  to  the  actual  context  and  emphasize  adherence  to 
an  established  primary  meaning  of  the  words  used. 

J  Ante,  §§  128-133.  3  Gray 's  ' '  The  Nature  and  Sources 

2  Po«t,  8  150.  of    the    Law,"    section    702,    page 

148 


Ch.  VIII]  ART  OF  interpretation;  l§I-t^ 

i$  149.    The  place  of  the  argfument  from  absurdity  or  incon- 
gruity:    It   is  always  an   argument   to   be  considered   tliat   a 
given  interpretation  produces  an  incongruous  or  absurd  result. 
Thus  where  there  is  a  devise  to  B  from  and  after  the  death  of 
A,  A  takes  a  life  estate  by  interpretation,  if  B  is  the  sole  heir 
of  the  testator."*     Otherwise  there  woidd  iiave  been  the  incon- 
gruous result  that  B  who  was  expressly  excluded  till  A's  death 
would  come  in  at  once  and  take  the  entire  interest.     If  ^  is 
only   one  of  several   heirs  of  the  testator  this   incongr\iity    is 
eliminated  and  A  takes  no  interest  at  all.     So  where  there  is  a 
gift  to  the  "heirs"   of  the  testator  after  a  life  estate,  if  the 
life  tenant  were  the  sole  heir  at  law  of  the  testator  "heirs" 
would  mean  those  who  would  be  the  testator's  heirs  if  he  had 
died  at  the  time  of  the  death  of  the  life  tenant,-'^  thus  excluding 
the  life  tenant.     This  was  based  upon  the  incongruity  of  the 
life  tenant,  who  was  excluded  from  the  absolute  interest,  taking 
it  at  once,  if  "heirs"  had  its  primary  meaning  of  heirs  at  the 
time  of  the  testator's  death.     If  the  life  tenant  was  only  one 
of  several  heirs,  then  the  incongruity  did  not  arise  and  ' '  heirs 
had  its  primary  meaning  of  heirs  at  the  death  of  the  testator. 

The  arginnent  from  incongruity  or  absurdity,  while  useful, 
must  not  be  exaggerated.  Its  weight  and  effect  in  a  given  case 
are  determined  by  the  exercise  of  judicial  discretion,  especially 
in  contexts  which  have  not  been  definitely  ruled  upon.'' 

316:     "It  undoubtedly  sounds  very  erty  on  contingencies  which  ho   did 

prettily  to  say  that  the  judge  should  not  have  in  contemplation, 

carry   out  the   intention   of   the  tes-  F.    M.    Nichols,    "On    the    Rules 

tator.      Doubtless    he    should;     but  which  Ought  to  Govern  the  Admis- 

some    judges,    I    venture    to    think,  sion   of    Extrinsic    Evidence    in    the 

have  been  unduly  influenced  by  tak-  Interpretation   of  Wills,"   2   Jurid. 

ing  a  fiction  as   if   it   were  a   fact.  Soc.   Pap.    376,    377:      "Difficulties 

*     *     *     For  instance,  if  a  testator  of    interpretation    more    frequently 

should  have  present  to  his  mind  the  arise   in   consequence   of   the   events 

question    whether    a    legacy    to    his  after  the  date  of  the  will  being  dif- 

wife   was   to    be    in   lieu   of    dower,  forent   from   those   contemplated   by 

it  is  almost  incredible  that  he  should  the  testator.     In  such  a  case  it  may 

not    make    what    he    wished    plain.  be  .said  that  the  testator  had  no  in 

"When  the  judges  say  they  are  inter-  tention    specially    applicable    to   the 

preting  the  intention  of  a  testator,  events  which  have  happened." 

what    they    are    doing,    ninety-nine  ■*  Post,  §  20.'5. 

times  out  of  a  hundred,  is  deciding  •'  Post.  §  572. 

what  .shall   be   done  with   his  proj)  «  See    for   instance   Rackemann   v. 

149 


§  150]  INTERPRETATION    OP   WILLS  [ClI.  VIII 

§  150.  The  art  of  balancing-  all  the  considerations  on  one 
side  against  all  those  on  the  other:  JMauy  problems  of  con- 
struction resolve  themselves  into  the  balancing  of  all  the  con- 
siderations on  one  side  against  all  those  on  the  other.  This  is 
especially  true  where  the  nature  of  a  contingency  is  involved 
and  where  at  the  same  time  the  context  develops  arguments 
and  considerations  on  both  sides.  The  interpreter,  whether  it  be 
counsel  or  the  court,  must  collect  all  the  considerations  on  each 
side,  then  must  weigh  them  correctly  and  ascertain  wliere  the 
balance  lies. 

The  best  concrete  example  of  this  process  in  our  Supreme 
Court  reports  of  which  the  writer  is  aware  is  to  be  found  in 
the  case  of  O'Harc  v.  Johnston,'  which  is  analyzed  po.s/,  §  .^)27. 

§  151.  The  language  used  must  be  able  to  bear  the  meaning 
placed  upon  it  and  no  additions  must  be  made  to  the  context 
of  what  is  not  in  it:  These  propositions  are  universally  con- 
ceded and  yet  in  their  application  very  difficult  questions  of 
judgment  arise.  How  far  will  language  properly  bear  a  strange 
meaning  attempted  to  be  put  upon  it"?  What  is  in  the  context 
and  what  is  not  frequently  defies  any  tangible  basis  for  answer. 
One  could  hardly  claim  that  the  courts  have  always  stopped  at 
precisely  the  right  point,  yet  the  general  rules  prevail  and  it 
is  a  matter  of  trained  judgment  in  the  practice  of  the  art  of 
interpretation  to  know  where  the  line  ought  to  be  drawn  in  a 
given  case. 

For  instance,  the  courts  have  held  that  "survivor"  may  mean 
"other"  s  and  yet  it  would  be  improper  to  generalize  from 
this  that  courts  would  be  equally  free  in  causing  words  in  a 
written  instrument  to  bear  the  meaning  of  other  words  quite 
ditferent. 

Courts  have  also  held  that  where  a  devise  is  made  to  B  from 
and  after  the  death  of  A,  a  life  estate  may  be  found  in  A  by 
interpretation  under  some  circumstances.^  They  have  estab- 
lished  rules  under  which   a   whole  series   of   cross-remainders 

Tilton,   236   111.   49 ;    Mills  v.   Teei,  ^  273  111.  458. 

245    111.    483;    6    111.    Law    Review  » Post,  §§602   et  seq. 

350,    where    arguments    based    upon  "  Post,  §  162. 

absurdity  and  incongruity  of  result 
were  ineffective  to  support  a  secon- 
dary meaning. 

150 


Cm.  VIU]  ART   OF    INTERPRETATION  [§152 

will  be  found  expressed  in  the  instrument,  though  no  word  of 
explicit  creation  can  be  found  within  the  four  corners  of  the 
document. ^'^  Yet  no  generalizations  can  be  made  from  these 
cases.  In  the  practice  of  the  art  of  interpretation  it  is  elear 
that  in  order  to  find  words  uttered  by  the  writing  when  they 
are  not  physically  apparent  to  the  eye,  the  words  which  are 
there  must,  when  read,  utter  tho.se  which  are  not.  In  our  Su- 
preme Coui't  reports  there  ai'e  several  examples  where  words 
were  found  to  bo  uttered  in  a  writing  when  they  were  not 
physically  apparent  to  the  eye.^^  Wliere,  however,  the  gifts  were 
to  A  for  life  and  if  he  died  without  leaving  children  to  the 
testator's  collateral  relations  the  court  held  that  the  words 
which  were  used  did  not  utter  a  gift  to  the  children  of  A  if 
he  left  such  children.'-  Instead  of  such  an  utterance  the  court 
found  that  there  was  silence,  perhaps  due  to  mistake,  but  still 
the  words  were  not  there.  Perhaps  one  of  the  closest  and  most 
difficult  cases  is  Avhore  there  is  a  devise  of  land  by  a  legal  de- 
scription which  covers  land  in  existence,  which,  however,  the 
testator  never  owned  and  where  in  order  to  find  an  ambiguity 
in  the  will  so  that  the  door  may  be  opened  to  construction 
and  the  application  of  the  doctrine  of  falsa  demonstratio  it  is 
necessary  to  find  such  additional  descriptive  words  as  '''belong- 
ing to  me."  It  would  seem  difficult  to  quarrel  with  a  court 
which  declared  that  words  of  a  will  devising  land  by  a  partic 
ular  description  in  fact  uttered  the  words  "belonging  to  me." 
At  the  time  of  this  writing,  however,  the  latest  decision  of 
our  Supreme  Court  is  that  such  words  cannot  be  found  uttered 
in  the  instrument  unless  to  some  extent  at  least  they  are  physi- 
cally present.'-^ 

§  152.     The  place  of  precedent  in  handlings  problems  of  con- 
struction:    It  has  been  said,  particularly  in  relation  to  testa 
inoiitary   interpretation,  that  authorities  can  be  of  no  service; 
that  to  cite  cases  is  to  construe  one  man's  nonsense  by  another 
man's    nonsense;    that   the    mode    of    dealing    with    one   man's 

^0  Post,  §§  600,  601.  258;  Martin  v.  Martin,  2TA  111.  r,9r). 

n  Glover  v.  Condell,  163  111.  566,  12  Bond    r.    Moore,    236    111.    576. 

583-584;    Blinn    v.   Gillett,    208    111.  See  also  Engelthaler   r.  Engelthaler, 

473,  487;  Lash  V.  Lash,  209  111.  595,  196  111.230. 

604;    Olcott   V.    Tope,   213    111.    124,  1  a  Stevenson  v.  Stevenson,  285  111. 

128;    Connor    v.    Gardner,    230    111.  486;  see  ante,  §187. 

151 


§  152]  INTERPRETATION    OF    WILLS  [Ch.  VIII 

blunder  is  no  guide  to  the  mode  of  dealing  with  another  man's 
blunder ;  that  all  the  courts  have  to  do  is  to  look  to  the  inten- 
tion of  the  testator  as  the  polar  star  and  give  it  effect.  On  the 
other  hand,  the  law  books,  the  opinions  of  judges,  and  the  j^rac- 
tice  of  lawyers,  all  speak  for  the  value  of  authorities  on  ques- 
tions of  interpretation  and  indicate  that  the^y  are  regarded  as 
helpful,  in  some  instances  to  the  point  of  being  controlling. 
The  truth  is  that  in  matters  of  interpretation  authorities  are 
sometimes  valuable  and  sometimes  not.  The  sensible  effort  is  to 
attempt  to  ascertain  Avhen  they  are  valuable  and  when  not,  and 
then  to  use  them  when  they  help  and  leave  them  alone  when 
they  do  not.  It  is  the  indiscriminate  use  of  authorities  and 
the  claiming  of  too  great  an  effect  by  them  that  has  brought 
the  use  of  all  authorities  in  matters  of  construction  into  dis- 
repute. 

Clearly,  authorities  are  of  tirst  importance  in  determining 
what  shall  be  taken  as  the  primary  meaning  of  words  and 
phrases.  This  is  especially  so  where  the  same  words  or  the 
same  phrases  have  often  occurred  in  the  same  or  similar  con- 
texts and  the  courts  have  dealt  with  their  meaning.  In  such 
cases  authority  simply  provides  a  precise  and  valuable  dic- 
tionary. It  has  a  direct  and  positive  value  which  cannot  be 
ignored  or  minimized.  Thus,  where  there  is  a  gift  to  the  tes- 
tator's "heirs  at  law,"  that  primarily  means  those  who  are 
heirs  of  a  testator  at  his  death  and  this  prevails  even  though 
the  gift  is  to  the  testator's  heirs  at  law  after  a  life  estate  and 
even  though  the  life  tenant  is  one  of  several  heirs  at  law. 

Authority  is  important  to  establish  for  many  recurring  sim- 
ilar contexts  what  contextual  situation  will  furnish  a  sufficient 
basis  (prima  facie  only,  of  course)  for  adopting  or  refusing  to 
adopt  a  possible  secondary  meaning.  Thus  where  a  testator 
devises  to  A  for  life  and  then  to  the  testator's  heirs  at  law  and 
A  is  one  of  several  heirs  at  law  of  the  testator,  heirs  at  law 
has  its  primary  meaning  of  heirs  at  law  at  the  testator's  death 
including  A,  but  if  A  be  the  sole  heir  at  law  then  heirs  at  law 
means  those  who  would  answer  that  description  if  the  testator 
had  died  at  the  time  of  the  death  of  A. 

Authority  is  especially  valuable  where  the  problem  of  in- 
teipretation  is  one  on  which  it  is  proper  to  assume  the  testator's 
mind  never  worked.     In  such  cases  the  result  (prima  facie)  re- 

152 


Ch.  VIII]  ART   OF    INTERPRETATION  \i  ]')! 

quired  by  the  eases  provides,  like  the  statutory  i-ules  of  descent, 
with  certainty  for  a  situation  not  covered  by  any  induc(ment  of 
the  testator,"  This  is  quite  true  of  the  example  already  used 
where  an  ultimate  devise  is  made  to  my  "iieirs  at  law/'  The 
chances  are  very  largely  that  this  was  merely  a  tilling-in  clause 
to  prevent  intestacy,  that  the  testator  had  no  one  particularly 
in  mind  and  that  his  attention  was  not  at  all  directed  to  who 
might  or  miglit  not  take.  There  is,  therefore,  a  real  absence 
of  any  personal  inducement  on  his  part.  It  is  most  fitting, 
therefore,  that  authority  should  settle  a  primary  meaning  of 
the  words  which  is  not  easily  upset. 

Authorities  may  be  used  to  indicate  the  way  in  which  courts 
skilled  in  interpretation  have  reasoned  about  a  given  [)roblem 
of  construction,  or  the  weight  or  standing  to  be  given  to  various 
considerations  and  arguments  which  may  be  available  in  a  given 
case.  This  includes  a  multitude  of  counsels  of  caution  such 
as  that  courts  lean  towards  vestetl  interests  rather  than  con- 
tingent interests,  that  they  lean  against  the  construction  of  a 
residuary  clause  which  would  result  in  intestacy. '•'•  Authorities 
cited  for  such  general  propositions  are  obviously  of  the  least 
value  in  controlling  the  ultimate  conclusion  in  the  case.  Au- 
thorities so  cited  merely  indicate  the  propriety  and  weight  to 
be  given  to  conflicting  considerations.  The  results  depend  upon 
the  weighing  and  valuing  of  the  opposing  considerations.  It 
is  frequently  unnecessary  to  cite  long  lists  of  authorities  in 
support  of  various  arguments  which  are  used  in  reaching  a 
result.  In  any  event  authorities  cited  to  establish  the  i)ro- 
priety  or  weight  to  be  given  to  one  i)artisan  argument  or 
consideration,  or  one  set  of  them,  should  not  in  the  face  of 
contrary  arguments  and  considerations,  also  supported  by  au- 
thority, be  hurled  at  a  court's  head  with  the  assertion  that  they 
compel  a  given  result.  This  is  what  our  Supreme  Court  means 
when  it  quotes  with  approvaP*"'  from  Gulliver  r.  Poiiniz^'  as 
follows:  "Cases  on  wills  may  serve  to  guide  us  with  respect 
to   general    rules   in   the    construction   of  devises    in   wills,   but 

1*  Gray 's  "Nature  and  Source.s  of  in  the  case  of  O'Hare   r.  Jolinstoii, 

the  Law,"  section  702,  page  316.  273  111.  458. 

15  See  also  such  considerations  as  i«  See  O'Hare  v.  Johnston,  273  111. 

are   set   out   post,   §  527,   in   dealing  458,  466,  and  cases  there  cited, 

with  the  balancing  of  considerations  i"  3  Wils.  141. 

153 


§  152]  INTERPRETATION    OP    WILLS  '    [Ch.  VIII 

unless  a  case  cited  be  in  every  respect  directly  in  point  and 
ao-ree  in  every  circumstance  with  that  in  question  it  will  have 
little  or  no  weight  with  the  courts,  who  always  look  upon  the 
intention  of  the  testator  as  the  polar  star  to  direct  them  in  the 
construction  of  wills."  Few  cases  are  "in  every  respect  di- 
rectly' in  point."  Few  ''agree  in  every  circumstance  with  that 
in  question."  Indeed,  the  only  cases  that  can  be  regarded  as 
controlling  are  those  where  a  single  phrase  or  word  in  a  regular 
form  has  been  ruled  upon  or  ruled  upon  repeatedly.  The  mo- 
ment a  context  furnishes  many  considerations  for  and  against 
a  given  meaning  so  that  all  must  be  weighed  and  balanced,  it  is 
practically  impossible  to  find  authorities  which  can  be  said  to 
control  the  ultimate  result  of  the  balancing  process. 

When  the  language  to  be  construed  is  svi  generis — where  the 
context  has  never  occurred  before  and  is  not  likely  to  again, — 
authority  cannot  control  the  result.  It  can  seldom  be  of  any 
value  at  all.  Whatever  effect  it  has  is  in  establishing  such  gen- 
eral counsels  of  caution  and  suggestions  as  may  be  made  use 
of  in  marshalling  the  arguments  and  considerations  in  favor 
of  one  interpretation  or  the  other.  Here  again  it  is  highly 
improper  to  insist  upon  a  greater  effect  for  cases  than  they  really 
have. 

When  a  judge  says  that  one  man's  nonsense  is  not  to  be 
construed  by  reference  to  another  man's  nonsense  it  is  a  fair 
inference  that  he  is  being  goaded  to  desperation  by  counsel 
who  are  demanding  an  interpretation  on  the  basis  of  authority 
under  circumstances  where  authorities  are  of  the  least  if  of 
any  value  at  all.  A  just  discrimination  in  the  use  of  authority 
in  matters  of  interpretation  is  recognized  by  courts  from  day 
to  day  as  a  matter  of  course.  The  importance  of  "accumulat- 
ing a  certain  mass  of  decisions,  in  order  to  supply  a  uniform 
standard,  and  to  fix  the  nearest  approach  to  absolute  correct- 
ness by  striking  an  average  of  opinions  through  a  long  series 
of  years"  ^^  is  obvious. 

18  F.    Vaughan    Hawkins    on    the       tion,"  2  Jurid.  Soc.  Papers  329. 
"Principles    of    Legal    Interpreta- 


154 


BOOK  III. 

ESTATES. 

CHAPTER  IX. 
FEE  SIMPLE. 

TITLE   I. 

HOW  CREATED  AT  COMMON  LAW  AND  UNDER  THE  STATUTES 
OF   USES   AND  WILLS.i 

§  153.  In  conveyances  inter  vivos:  To  create  a  fee  simple 
estate  in  a  natural  person,  in  a  conveyance  inter  vivos  at  com- 
mon law  or  under  the  Statute  of  Uses,  it  was  necessary  that  the 
word  "heirs"  be  used  in  connection  with  the  words  of  convey- 
ance so  as  to  make  the  expression  "to  A  and  his  heirs."-  If 
the  word  "heirs"  was  not  used,  then  only  a  life  estate  was 
created,  no  matter  how  clear\v  the  intent  to  give  a  fee  Avas  ex- 
pressed.-'' There  were  several  exceptions  to  this  reciuirement 
as  to  the  use  of  the  word  "  heirs.  "^  One  was  that  if  the  con- 
vej'ance  were  to  the  "heirs  of  Z?"  and  the  heir  took  at  all,  he  had 
a  fee.  It  was  unnecessary  to  add  "and  to  their  heirs.""'  The 
Massachusetts  Supreme  Court  introduced  the  further  exception, 
that  if  the  conveyance  were  lo  li-ustees  and  tlie  intent  expressed 
that  they  should  take  in  fee  and  their  duties  required  it,  the 
fee  would  pass  although  the  word  "heirs"  was  not  used.«  Where 
the  grantee  was  a  corporation  sole,  it  was  necessary,  after  the 
words  of  transfer  to  the  A  corpoi-ation,  to  use  the  phrase 
"and    its   succes.sors, " "    except   in   the   case   where    the   grant 

1  Ante,  §11.  "'Co.  Lit.  9b,  10a;  3  Gray's  Cases 

2  Lit.  §1;   Co.  Lit.  8b;   3  Gray's       on  Prop.,  2nd  ed.  307. 

Cases  on  Prop.,  2nd  ed.  304,  305.  6  Newhall  v.  Wheeler,  7  Mass.  189 

3  Lit.   §1;   Co.  Lit.  8b;   3  Gray's  (1810);    3   Gray's   Cases   on  Prop., 
Cases  on  Prop.,  2nd  ed.  304.  2nd  ed.  307. 

4  Co.  Lit.  9b,  10a;  3  Gray's  Cases  7  Co.  Lit.  8b;   3  Gray's  Cases  on 
on  Prop.,  2nd   ed.  305,  307.  Prop.,  2nd  ed.  304. 

155 


§  154J  ESTATES  [Ch.  IX 

Avas  in  free  alms.^  "Where  the  grantee  was  a  corporation  ag- 
gregate, a  conveyance  "to  tlie  A  corporation"  was  all  tiiat 
was  necessary  to  transfer  a  fee.'^ 

§  154.  Where  the  transfer  was  by  devise:  Here  the  use  of 
the  word  "heirs''  was  not  necessary.  Any  words  Avhich  ex- 
pressed an  intent  that  the  grantee  should  have  a  fee  were  effec- 
tive to  accomplish  that  purpose.^o  Still  it  should  be  observed 
that  a  life  estate  only  was  created  unless  the  will  showed  affirm- 
atively that  a  fee  was  intended.^ ^ 

§  155.  The  foregoing-  rules  prevailed  in  this  state  until 
July  31,  1837:  It  was  not  until  this  date  that  the  act  which 
is  now  known  as  Sec.  13  of  the  Conveyancing  Act  became  effec- 
tive. ^^  Prior  to  that  time  there  was  no  legislation  altering 
what  may  be  referred  to  as  the  common  law  rules  and  these 
rules  may,  therefore,  be  assumed  to  have  been  in  force.'"' 

TITLE  II. 
UNDER    SEC.    i:^,    R.    S.    1874,    CH.    30. 

§156.  The  statute:  Section  13  of  the  Conveyancing  Act 
first  appeared  in  the  statutory  law  of  this  state  in  1837.  It 
was  approved  and  in  force  July  31st  of  that  year.^^  It  Avas 
subsequently  incorporated  into  R.  S.  1845,  Ch.  24,  Sec.  13.'^ 
It  provided  as  follows :  ' '  Every  estate  in  lands  which  shall  be 
granted,  conveyed  or  devised,  although  other  words  heretofore 

8  Co.  Lit.  9b,  10a ;  3  Gray's  Cases  (111.)  76,  is  not  inconsistent  with 
on  Prop.,  2n(l  ed.  306.  this  statement,   for  though   the  will 

9  Co.  Lit.  9b,  10a ;  3  Gray 's  Cases  in  that  case  took  effect  by  the  testa- 
on  Prop.,  2nd  ed.  306.  tor's  death  in  1806  and  though  the 

10  Co.  Lit.  9b,  10a;  3  Gray's  Cases  devise  was  to  Rebecca  without  the 
on  Prop.,  2nd  ed.  305.  further  phrase  "and  her  lieirs "  or 

11  Co.  Lit.  9b,  10a;  3  Gray's  other  words  indicating  that  a  fee 
Cases  on  Prop.,  2nd  ed.  305.  For  was  intended,  yet  the  plaintiff  in 
the  many  special  contexts  which  error's  contention  that  the  gift  over 
were  held  sufficient  to  express  an  in-  was  void,  depended  upon  Rebecca 
tent  to  devise  a  fee  simple  estate,  taking  a  fee.  The  position  of  the 
see  the  earlier  editions  of  Theobald  court,  therefore,  was  that  even  as- 
on  "Wills  (1st  ed.  209  et  seq,  2nd  ed.  suming  this  to  be  so,  the  gift  over 
325  et  seq).  Also  Jarnian  on  Wills,  was  valid  as  an  executory  devise  and 
6th  Amer.  Ed.   (Bigclow)   *pp.  1131  that  disposed  of  the  case. 

et  seq.  h  Laws   1837    (Spe.   Ses.)    p.    14; 

12  See  Post,  §  156.  A.  &  D.  R.  E.  S.  Vol.  1,  p.  91. 

13  Acklesa     v.     Seckright,     Brecse  '^  A.  &  D.  R.  E.  S.  Vol.  1,  p.  124. 

156 


CU.  IXJ  FEE   SIMPLE  ggX  §J 

necessary  to  transfer  an  estate  of  inheritance  be  not  added,  shall 
be  deemed  a  fee  simple  estate  of  inheritance,  if  a  less  estate 
be  not  limited  by  express  words,  or  do  not  apj^ear  to  have  been 
granted,  conveyed,  or  devised  by  const  rnct ion  or  operation  of 
law."  This  act  causes  all  transfers  to  be  primarily  in  fee  by 
the  mere  designation  of  the  transferee.  This  primary  meaning 
or  effect  of  the  conveyance  gives  way  if  a  less  estate  is  limited 
by  express  words  or  by  implication  of  law.  It  is  fortitied  and 
confirmed  if  the  common  law  formula,  which  includes  the  word 
"heirs,"  is  used,  or  if  any  other  ex])ression  be  added  which 
indicates  a  fee.  The  difficult  cases  arc  those  where  the  context 
is  not  decidedly  in  favor  of  a  less  estate  than  a  fee  nor  decidedly 
in  favor  of  a  fee,  and  where  upon  the  special  context  a  (jues- 
tion  arises  as  to  whether  the  statutory  primary  meaning  in  sup- 
port of  a  fee  has  been  overcome,  so  that  by  construction  a  less 
estate  than  a  fee  is  in  fact  limited. 

§  157.  Cases  where  an  estate  less  than  a  fee  is  limited  by 
express  words:  The  cases  where  a  less  estate  than  a  fee  is 
created  by  express  Avords  because  such  words  are  used  as  indi- 
cate an  intent  and  are  eifective  to  create  a  fee  tail  (on  which 
the  Statute  on  Entails  operates),  or  a  life  e.state.  will  be  here- 
after dealt  with.i'' 

§  158.  Cases  where  the  primary  effect  of  the  conveyance  to 
create  a  fee  was  confirmed  by  the  use  of  the  common  law 
word  of  limitation,  i.  e.,  "heirs":  If  words  are  used  which 
were  sufficient  to  create  a  fee  at  common  law  in  a  conveyance 
inter  vivos,  a  fee  is  certainly  limited  under  the  statute.'"  The 
fact  that  there  is  a  gift  over  is  not  in  the  least  effective  to  cut 
down  to  a  life  estate  the  fee  expressly  limited.'*^     Even  where 

^•■Post,  §§  194-20.'5.  let  r.  Burlot,  246  111.  .563;  Williams 

17  Holliday   v.   Dixou,  27   111.    33;  r.    Elliott,    246    111.    548;    Smith    r. 

Pool  V.  Blaicie,  53  111.  495;   Murfitt  Dellitt,  249  111.  113;  Wilson  r.  Wil- 

V.  Jesaop,  94  111.  158;   Friedman   v.  son,  268  111.  270;   Haight   v.  Royce, 

Steiner,   107   III    125;    Hageman   r.  274  111.  162;  Blackstone  v.  Althouse, 

Hageman,    129   111.   164;    Wolfer   v.  278  111.  481. 

Hemmer,    144    111.    554;    Ewing    v.  is  Wolfer  r.  Hemmer,  144  111.  554; 

Barnes,   156  111.   61 ;    Silva  v.   Hop-  Ewing  v.  Barnes,  156  111.  61 ;  Wilson 

kinson,  158  111.  386;  Lambe  r.  Dray-  r.    Wilson,    268    111.    270;    Pitzcr   v. 

ton,  182  III.  110;  Kron  v.  Kron,  195  Morrison,   272   111.   291;    Blackstone 

111.  181;  Davis  v.  Sturgeon,  198  HI.  r.   Althouse,  278  111.  481.     In  Sylva 

520 ;  Orr  v.  Yates,  209  111.  222 ;  Bur-  v.  Hopkinson,  158  111.  386,  a  devise 

157 


§  159]  ESTATES  [Ch.  IX 

there  are  gifts  over  on  several  contingeii'jies  -which  exhaust  all 
possibilities,!'-'  the  context  lias  been  held  InsufTicient  to  overcome 
the  inference  from  the  words  of  limitation  "to  her  and  her 
heirs  forever"  that  a  fee  Avas  intended  to  be  limited.-"  Even 
Avhere  the  gift  over  was  upon  the  intestacy  of  the  first  taker, 
or  upon  his  failure  to  dispose  of  the  property  by  deed  in  his 
life  time,  or  by  will  at  his  death,  so  that  the  gift  over  was  void 
if  the  first  taker  had  a  fee,^!  it  was  still  held  that  a  fee  was 
created  and  the  gift  over  void.^-  In  some  cases,  where  a  devise 
has  been  made  to  "A  and  his  heirs,"  the  contention  has  been 
put  forward  that  the  gift  was  to  A,  but  if  A  died  before  the 
testator  then  the  property  was  to  go  to  his  heirs.  Such  a  con- 
struction has  not  been  sustained.-^  In  a  few  cases,  where  the 
conveyance  or  devise  was  "to  A  and  his  heirs,"  the  court  has 
seemed  to  declare  that  A  took  the  fee  by  the  Rule  in  Shelley's 
Case?^  The  impropriety  of  applying  the  Hide  in  Shelley's  Case 
to  such  a  formula  of  words  is  commented  on  elsewhere.--'  That 
it  is  unnecessary  to  apply  the  Rule  in  Shelley's  Case  to  secure 
the  result  reached  should  at  this  point  be  apparent. 

§  159.  Cas€s  where  the  primary  effect  of  the  transfer  to 
create  a  fee  was  confirmed  by  the  use  of  expressions  other  than 
the  common  law  words  of  limitation:     Where  the  limitations 

to  two  children,  A  and  B,  equally  Kron  v.  Kron,  195  111.  181;  Orr  v. 
share  and  share  alike  "and  to  their  Yates,  209  111.  222;  Williams  v.  El- 
lawful  heirs,  but  in  the  event  of  liott,  246  111.  548;  Wilson  v.  Wilson, 
their  death  without  issue"  over  to  268  111.  270. 

C,  was  said  to   give  A  and  B  life  23  Lyaich  v.   Swayne,  83   111.   336; 

estates    (probably  by  reason  of  the  Burlet  v.  Burlet,  246  111.  563 ;  JIaight 

gift    over)    with    the    remainder    to  v.  Eoyee,  274  111.  162.     But  see  Gol- 

their    heirs,    which    by    the    rule    in  laday   v.  Knock,   235  111.  412,  post, 

Shelley's  case  would  give  A  and  B  §§323,  382.     In  Siddons  v.  Cockrell, 

the  fee.     It  would  have  been  more  131  111.  653,  a  limitation  to  a  widow 

in  accordance  with  the   cases  if  A  "and    her    heirs"    was,    upon    the 

and   B   had    taken    the    fee    l)y    the  whole  context,  held  to  be  only  a  life 

words   of  limitation    "and   to   their  estate. 

lawful    heirs ' '    without    any    refer-  24  Baker  v.  Scott,  62  111.  86 ;  Lehn- 

ence  to  the  rule  in  Shelley's  case.  dorf  v.  Cope,   122  111.   317;   Wolfer 

19  See  post,   §§165,   167.  r.   Hemmer,   144  111.  554,  559;   Ew- 

soEissman  v.  Wierth,  220  111.  181.  ing  v.  Barnes,  156  111.  61;  Silva  v. 

21  Post,  §§717-725.  Hopkinson,    158    111.    386;    Davis   v. 

"Friedman    v.    Steiner,    107    111.  Sturgeon,    198   111.   520. 

125;   Ewing  v.  Barnes,  156   111.  61;  --^s  Post,  §415. 
Lambe    v.    Drayton,    182    111.    110; 

158 


ClI.  IXJ  KEE  SIMlM.i;  [§  160 

are  to  A  "in  fee,"  -''  or  "absolutely"  -■  or  "forever"  -«  the  stat- 
utory inference  that  a  fee  is  created  is  emphasized.  Even  though 
the  gift  over  (being  on  the  intestacy  of  tiie  first  taker,  or  upon 
liis  failure  to  dispose  of  property  by  deed  or  will)  is  void  if 
the  first  taker  has  a  fee  or  absolute  interest,  yet  wliere  the  trans- 
fer is  in  terms  "in  fee"  or  "absolutely,"  it  has  been  held  tliat 
the  first  taker  has  a  fee  or  absolute  interest  and  that  the  gift 
over  is  void.-"*  Any  context  wiiich  was  sufficient  under  the 
common  law  authorities  to  indicate  that  a  drvhe  was  in  fee,  is 
now  available  (whether  the  conveyance  is  inter  vivos  or  by 
will)  to  fortify  the  statutory  prima  facie  inference  of  a  fee. 
Thus,  in  a  conveyance  to  A  subject  to  a  charge  upon  the 
property, •'^"  or  in  a  conveyance  to  A  of  all  the  transferor's 
"estate,"  •'^^  the  special  context  confiims  the  statutory  inference 
that  a  fee  w-as  intended. 

§  160.  Cases  where  there  is  a  transfer  to  A  simpliciter  and 
no  context  showing"  an  intent  that  A  shall  or  shall  not  take  the 
fee,  but  where  under  the  statute  he  nevertheless  does  so:  If 
the  transfer  is  to  A  simpliciter  and  there  is  no  other  context, 
A  takes  the  fee  by  the  statute.^-  Sometimes,  however,  the 
words  used  provide  merely  that  A  shall  receive  the  rents  and 
profits  indefinitely.  This  is  held  to  be  equivalent  to  words  of 
transfer  of  the  corpus  of  the  estate  to  A  and  A  takes  a  fee  by 
the  statute.^^     In  two  eases  the  explicit  words  providing  for  a 

2«  Stewart  v.  Stewart,  186  111.  60;  ciier  with  a  gift  or  gifts  over,  A  is 

Bowen  v.  John,  201  111.  292.  held  to  take  the  fee. 

27  Wilson  V.  Turner,  164  111.  398.  ■-*•■*  Rcitl  v.  Voorhees,   216  111.  236, 

28Saeger  v.  Bode,  181  111.  514.  241;    Pease  r.   Davis,   22")   111.  408; 

29  Stewart  v.  Stewart,  186  111.  60;  Dwyer  v.  Cahill,  228  111.  617;  De- 
Wilson  V.  Turner,  164  111.  398.  Post,  frees  v.  Brydon,  275  111.  530;  Theo- 
§§  717-725.  liald  on  Wills,  7th  ed.  480;   Elton  v. 

30  Johnson  v.  Johnson,  98  111.  564,  Sheppard,  1  B.  C.  C.  532;  Philipps 
571  (semble).  v.  Chaniberlaiue,  4  Ves.  51;   Boosey 

31  Thomas  v.  Miller,  161  111.  60,  r.  Gradner,  18  Beav.  471;  Humphrey 
67.  V.    Humphrey,    1    Sim.    N.    S.    536; 

32McCounel  v.  Smith,  23  111.  611  Haig  v.  Swiney,  1  S.  St.  487;  Wat- 

(original   ed.)  ;   Leiter  v.  Sheppard,  kins  v.  Weston,  32  Beav.  238,  3  De 

85  111.  242;  Green  v.  Grant,  143  111.  G.  J.  &  S.  434;  Penny  v.  Peppin,  15 

61   (semble);  Congress  Const.  Co.  v.  W.  R.   306;   In  re  Tandy,  Tandy  v. 

Farson   Co.,   199   111.   398    (semble).  Tandy,   34  W.   R,   748;   Davidson  v. 

See  also  cases  cited,  post,  §§  164,  166  Kimpton,    18    Ch.    D.    213;    In    re 

where,  upon  a  transfer  to  A  sivipH-  L  'Herminier,    Mounsey     r.    Buston, 

159 


161 


ESTATES 


[Ch.  IX 


transfer  to  A  were  not  present,  bnt  they  appeared  implicitly 
because  they  were  actually  articnhited  by  the  other  Avords  Avhich 
were  used.    Hence  A  had  a  fee  by  the  statute. ^^ 

§  161.  Cases  where  the  only  special  context  tends  to  indi- 
cate that  a  less  estate  than  a  fee  was  intended,  but  where  this 
context  is  deemed  to  be  insufficient  to  overcome  the  primary- 
statutory  meaning:  The  most  frequent  case  of  this  sort  is 
where  a  gift  over  on  a  single  contingency,  or  gifts  over  on 
several  contingencies  which  do  not  exhaust  all  the  possibilities, 
provide  a  context  in  support  of  an  expressed  intent  to  create 
only  a  life  estate,  and  where  it  is,  nevertheless,  held  that  this  is 
not  sufficient  to  interfere  with  or  overcome  the  statutory  pri- 
mary meaning  that  a  fee  was  created. •'•''  In  other  cases  miscel- 
laneous contexts  tending  in  some  degree  to  indicate  that  a  life 
estate  was  intended,  have  been  held  insufficient  to  overcome  the 
statutorv  inference  in  favor  of  a  fee.'''^     Several  examples  of 


[1894]    1    Ch.    675.      But    compare 
Guerin  v.  Guerin,  270  111.  239. 

34  Connor  v.  Gardner,  230  111.  258 ; 
Martin  v.  Martin,  273  lU,   595. 

^5  Post,  §§164,  166.  Smith  v. 
Kimbell,  153  111.  368 ;  Mayer  v.  Mc- 
Cracken,  245  111.  551;  Terhune  v. 
Commercial  Safe  Dep.  Co.,  245  111. 
622;  Forbes  v.  Forbes,  261  111.  424; 
Lachenmyer  v.  Gehlbach,  266  111.  11 ; 
Pitzer  V.  Morrison,  272  111.  291; 
Gawin  v.  Carroll,  276  111.  478;  Aloe 
V.  Lowe,  278  111.  233. 

30  In  Brownfield  v.  Wilson,  78  111. 
467,  where  the  testator  devised  to 
his  wife  a  certain  tract  so  as  prima 
facie  to  create  in  her  a  fee,  a  subse- 
quent clause  giving  * '  real  estate ' '  to 
the  testator's  children  and  requir- 
ing it  to  be  sold  after  the  wife's 
death,  did  not  cut  down  the  wife's 
interest  to  a  life  estate. 

In  Leiter  v.  Sheppard,  85  111.  242, 
where  the  gift  was  to  A  simplicilcr, 
A  was  held  to  have  the  fee,  althoagh 
in  the  same  instrument  other  devises 
were  made  with  words  of  limitation 
expressly  attached  indicating  a  fee. 


In  Muhlke  v.  Tiedemann,  177  111. 
606,  the  wife  was  held  to  have  a  fee 
although  there  was  expressly  super- 
added a  power  in  her  to  make  leases. 

In  Saeger  v.  Bode,  181  111.  514, 
the  testator  first  devised  his  home- 
stead to  his  wife  in  fee,  and  then 
to  the  daughter  all  the  estate  "not 
disposed  of  in  the  above  bequeath, 
at  the  death  of"  the  wife.  The 
last  clause  was  held  to  mean  that  the 
daughter  was  to  take  all  the  prop- 
erty except  the  homestead.  Hence 
the  widow  took  the  homestead  prop- 
erty in  fee. 

In  Sandifer  v.  Sandifer,  229  111. 
523,  a  conveyance  by  a  husband 
to  his  wife,  provided  "it  is  hereby 
agreed  *  *  *  that  upon  the 
death  of  parties  hereto  the  estate 
*  *  *  shall  be  divided  in  several- 
ty among  our  legal  heirs  equally." 
The   wife   took   the    fee. 

In  Weihe  v.  Lorenz,  254  111.  195, 
a  conveyance  which  gave  '  *  10  feet 
wide  for  alley  purposes ' '  created  a 
fee  and  not  a  mere  easement. 

In  Read  v.  Adams,  280  111.  142, 


160 


Cii.  IX] 


FEE   SIMPLE 


§162 


pontoxts   wliich   were   held    insuffieieut   to   overcome   tlie   statu- 
tory iutViviice  that  a  fee  was  created  are  given  i)ost  §  1G9.'" 

§  162.  Transfer  to  A  simpliciter  followed  by  a  gift  ' '  at  his 
decease":  Here  tlie  context  warrants  the  holding  that  a  life 
estate  is  created. •'-'^  Tlie  cases  in  this  state  wliere  such  a  result 
has  been  reached  are  comparatively  few.-''*  Usually  there  is 
some  further  context  which  aids  the  construction  that  a  life 
estate  was  intended  to  be  created.^'^  In  McClintock  v.  Meehan*^ 
the  first  taker  was  thought  by  the  court  to  have  a  life  estate 
although  the  gift  over  at  his  death  was  only  to  take  effect  on  the 
expressed  condition,  precedent  that  the  one  who  took  the  gift 
over  survived  and  the  other  gift  over  did  not  exhaust  all  the 
possibilities.  This  is  a  weak  ease  to  support  the  holding  that 
a  life  estate  is  created.  The  full  force  of  the  gift  over  at  the 
first  taker's  death,  to  confer  on  him  only  a  life  estate,  arises ^^ 
when  the  gift  is  certain  to  go  over  at  his  death  in  any  event. 
If,  therefore,  the  gift  over  is  to  take  effect  only  on  a  contingent 
event,  or  on  events  which  do  not  exhaust  all  the  possibilities, 
the  case  is  like  one  where  the  gift  is  to  X,  with  the  single  gift 
over  if  he  dies  without  leaving  issue  or  some  other  similar  single 


there  was  a  devise  to  A  simpliciter, 
with  a  power  to  sell,  but  this  did  not 
cut  down  the  estate  to  less  thau  a 
fee. 

See  also  Bowcn  v.  John,  201  111. 
292 ;  Little  v.  Bowman,  276  111.  125. 

37  See  also  Rissman  v.  Wierth,  220 
111.  181;  posi,  §  182. 

38  Theobald  on  Wills,  7th  ed.  658, 
659. 

39  Hurt  V.  McCartney,  18  111.  129; 
Gaffield  v.  Plumber,  175  111.  521; 
Cover  V.  James,  217  111.  309;  Hill  v. 
Gianelli,  221  111.  286;  McClintock  i'. 
Meehan,  273  111.  434. 

•«o  Routt  V.  Nemnan,  253  111.  185, 
where  there  was  not  only  a  gift  over 
at  the  death  of  the  first  taker  but  a 
provision  that  payments  be  made 
I)ersonally  to  the  first  taker.  See 
cases  dealt  with  post  §  168,  where 
the  gift  over  was  on  the  first  taker's 

Kales  Fut.  Int. — 11  Jg]^ 


death  of  what  remains  undisposed 
of;  Bergan  v.  Cahill,  55  111.  160; 
Hamlin  v.  United  States  Express 
Co.,  107  111.  443;  Griffiths  v.  Grif- 
fiths, 198  111.  632;  Bradley  v.  Jen- 
kins, 276  111.  161.  Observe  also  the 
cases  dealt  with  post,  §§  165,  167, 
where  the  gift  over  is  on  the  first 
taker's  death  and  upon  a  double 
contingency  of  having  children  or 
not  having  children,  one  of  which  is 
certain  to  happen;  Johnson  v.  John- 
son, 98  111.  564;  Healy  v.  Eastlake, 
152  111.  424;  Furnish  c.  Rogers,  154 
111.  569;  Thomas  v.  Miller,  161  111. 
60;  Johnson  v.  Askey,  190  111.  58; 
King  V.  King,  215  111.  100;  Bauman 
V.  Stoller,  235  111.  480 ;  Kleinhans  v. 
Kleinhans,  253  111.  620. 

41  273  111.  434. 

*'^Tosi,  §§  164,   166. 


§163]  ESTATES  [Ch.  IX 

eontiugent  event,  and  where  the  first  taker  is  held  quite  regu- 
larly to  take  the  fee  or  absolute  interest. 

§  163.  Transfer  to  A  simpliciter  followed  by  a  gift  "in  case 
of  his  death"  or  some  other  expression  treating-  A's  death  as 
a  contingent  event:  If  such  limitations  be  made  in  a  con- 
veyance inter  vivos,  it  is  believed  that  A's  interest  should  be  held 
to  be  a  life  estate  just  as  if  the  limitations  were  to  A  and  "at 
A's  death"  to  B.^^  On  the  other  hand,  if  the  gift  is  by  will  and 
of  personal  property,  the  fact  that  A's  death  is  referred  to  as  a 
contingent  event — i.  e.,  one  which  may  or  may  not  happen — regu- 
larly causes  "death"  to  be  referred  to  death  in  the  lifetime  of 
the  testator.  The  gift  over  is  regarded  as  taking  care  only  of 
the  case  of  a  lapse  in  the  legacy  by  the  death  of  the  legatee  before 
the  testator.^*  Suppose  now  that  the  limitations  are  by  will  and 
that  realty  is  involved.  It  can  hardly  be  said  that  the  English 
cases  ever  settled  any  construction  regarding  this  context.  If 
A  were  to  take  a  fee,  if  he  took  at  all,  then  "death"  was  re- 
ferred to  death  before  the  testator.^  ^  If  there  was  not  enough 
in  the  context  to  give  A  a  fee,  so  that  he  took  a  life  estate  in  any 
event  (and  not  necessarily  by  reason  of  the  words  "in  case  of  A's 
death"),  then  "death"  referred  to  A's  death  at  any  time.^^ 
Since  the  Will 's  Act,"*"  which  caused  the  devise  to  A  to  be  taken 
prima  facie  as  creating  a  fee,  it  might  be  supposed  that  the 
English  judges  would  refer  "death"  to  death  before  the  tes- 
tator, so  that  A,  if  he  took  at  all,  would  take  the  fee  and  there 
would  be  no  gift  over.^^  Under  Sec.  13  of  our  Conveyancing 
Act  a  similar  result  might  be  reached.  In  two  cases  ^^  our  court 
has  recognized  the  distinction  taken  by  the  English  cases  be- 
tween a  devise  "to  A  and  at  his  death  to  B,"  and  the  devise  "to 
A  and  in  case  of  his  death  to  B,"  and  has  held  that,  in  the 
former  instance  A  takes  a  life  estate,  while  in  the  latter,  A  takes 
an  absolute  interest  and  "in  case  of  his  death"  refers  to  death 
in  the  lifetime  of  the  testator .^*^ 

43  Ante,    §  162,    Cover    v.    James,  ^6  id. 

217  111.  309.  47  1  Vic.  eh.  26,  sec.  28. 

44  Theobald  on  Wills,  7th  ed.  pp.  48  See  Rogers  v.  Rogers,  7  Weekly 
6.58,   659;    Fifer   v.   Allen,    228   111.       Rep.  541  (1859). 

507,    514;    Carpenter    v.    Sangamon  49  Fifer    v.    Allen,    228    111.    507, 

Trust  Co.,  229  111.  486,  491;   Jenne  514;    Carpenter  v.   Sangamon   Trust 

V.  Jenne,  271  111.  526;  post,  §  5:}0.  Co.,   229   111.   486,   491. 

45  Theobald  on  Wills,  7th  ed.  660.  so  in  Kleinhans  v.  Kleinhans,  253 

162 


Ch.  IXj  FEE   SIMPLE  [§1^A 

§  164.  Effect  of  gifts  over — (I)  Where  the  limitations  are 
to  A  simpliciter  with  a  gift  or  gifts  over  on  A's  death  and  on 
one  or  more  collateral  contingencies,  which,  however,  do  not 
exhaust  all  the  possibilities:  Whore  the  limitations  are  to  A 
mnplicitcr  with  a  gift  over  upon  the  single  contingency  that  he 
dies  without  leaving  issue  or  children,  "die"  refers  to  death  at 
any  time,  either  before  or  after  the  death  of  the  testator,  and 
A's  estate  is  a  fee  or  an  absolute  interest  which  is  subject  to 
be  divested  by  the  taking  effect  of  the  gift  over  upon  the  con- 
tingency named,^''  but  is  only  divested  by  the  happening  of  the 
event  specified.^ ^  Where  the  only  gift  over  is  in  case  A  dies 
without  children  or  issue  surviving,  any  other  result  would  be 
very  awkward  because  if  A  had  only  a  life  estate  and  died  leav- 
ing children,  they  could  not  take,^^  yyhile  if  A  had  the  fee,  they 
might  take  by  descent  or  devise  from  him.  The  same  results 
may  be  regularly  expected  where  there  are  gifts  over  on  more 
than  one  contingency,  but  all  the  possibilities  are  not  exhausted.*^^ 

In  Palmer  v.  Cooky>^  the  deed  conveyed  land  to  A  and  B,  and 
in  case  either  died  "Avithout  an  heir,"  to  the  survivor.  How- 
ever wrong  the  court  may  have  been  in  holding  the  gift  over 
void  as  a  fee  on  a  fee  by  deed  "'^  it  was  clearly  right  in  insisting 
that  A  and  B  had  a  fee.  This  result  is  not  in  conflict  with 
Cover  V.  James,^"^  where  the  gift  over  was  in  the  event  of  the 

111.    620,    the    gifts    over   were    "in  111.    239;     Terhune    v.    Commercial 

case  of  the  death  of"  A,  the  first  National  Safe  Deposit  Co.,  245  111. 

taker     in     remainder     after     a    life  622;  Forbes  v.  Forbes,  261  111.  424; 

estate,  but  there  was  also  the  further  Abbott  v.  Essex  Co.,  18  How.  202; 

context  that  death  referred  to  death  Piatt  v.  Sinton,  37  Ohio  St.  353. 
at  any  time  and  not  merely  death  in  52  Terhune     r.     Commercial     Safe 

the  life  of  the  life  tenant,  whose  life  Dep.  Co.,  245  111.  622. 
estate  preceded  A's  interest.     Fur-  ss  Under  the  decision  in  Bond  i;. 

thermore,    the    gifts    over    were    on  Moore,  236  111.  576,  there  could  be 

contingencies    which    exhausted    all  no  estate  by  implication  in  favor  of 

the  possibilities.  the  children. 

51  Fifer    v.    Allen,    228    111.    507;  54  Mayer    v.    McCraeken,    245    111. 

Ahlfield  V.  Curtis,  229  111.  139;  Car-  551;  Stollcr  r.  Doyle,  257  111.  369. 
penter  v.  Sangamon  Trust  Co.,  229  55  159  m.  300. 

111.  486 ;  Crocker  v.  Van  Vlissingen,  5g  post,  §  462. 

230    111.    225;    Brcnock   v.    Brenock,  57  217  111.  309,  o;i/<?.  §  163.    Stale- 

230  111.  519.     See  also  Giles  v.  An-  ments  in  Bauman  r.  Stoller,  235  111. 

slow,  128  111.  187;  Smith  v.  Kimbell,  480,   490,  and   Buck   v.   Garher,   261 

^rv^  III.  368;   Strain  r.  Sweeny,   163  111.   378,  383,   that   Cover   v.   .lames, 

111.    603;    Bradsby    1'.    Wallace,    20'J  supra,   is   inconsistent    with    holding 

163 


§  165]  ESTATES  [Ch.  IX 

death  of  the  first  taker  sim.plicitcr,  no  other  contingency  being 
mentioned.  It  is  not  in  conflict  with  Bauman  v.  Stoller,^^  be- 
cause, when  the  court  finally  adjudicated  the  character  of 
the  limitations  involved  in  that  case,  it  held  that  the  first  taker 
acquired  a  fee.^^ 

In  McClintock  v.  Meehan,^^  the  limitations  involved  were  to 
John  H.  ' '  and  at  his  death  the  title  to  said  land  shall  vest  in  his 
sister  Margaret  if  she  shall  then  be  living,  and  if  the  said  John 
H.  and  Margaret  shall  both  die  leaving  no  children,"  then 
over  to  Charles,  John  H.  filed  a  bill  to  quiet  title  in  himself  in 
fee,  while  Margaret  was  still  alive  and  had  six  children  living. 
A  decree  that  John  H.  liad  a  fee  and  that  Margaret  had  no  inter- 
est Avas  clearly  error  and  properly  reversed  regardless  of  whether 
John  H.  had  a  fee  or  a  life  estate.  If  John  had  a  fee  it  was  cer- 
tain to  be  divested  on  the  contingencies  Avhich  might  happen. 
The  court,  however,  intimated  that  John  had  only  a  life  estate. 
This  like  most  conclusions  regarding  the  construction  of  inar- 
tificially  draAvn  wills  may  be  justified  on  the  special  context  and 
can  be  no  precedent  in  other  cases.  It  should  be  noted,  however, 
that  the  contingencies  here  do  not  exhaust  all  the  possibilities. 
If  John  survived  ^largaret,  and  Margaret  died  leaving  issue, 
Charles  could  not  take,  Margaret  could  not  take,  and  Margaret's 
issue  could  not  take.  If  John  took  only  for  life,  there  would 
be  an  intestacy.  The  case  would  seem  to  be  one  of  those  where 
the  statute  placed  the  fee  in  John  and  no  context  sufficiently 
strong  indicated  that  it  should  be  cut  down  to  a  life  estate. 

§  165.  (2)  Where  the  limitations  are  to  A  simpliciter.. 
with  gifts  over  on  several  conting-encies  which  exhaust  all  the 
possibilities:  It  might  be  argued  that  such  cases  were  in 
efl'ect  the  same  as  where  there  Avas  a  devise  to  A  and  ' '  in  case  of 
his  death"  to  B  and,  therefore,  "die"  means  die  in  the  lifetime 
of  the  testator  only,  because  if  "die"  meant  die  at  any  time, 
there  would  be  the  incongruity  of  speaking  of  an  event  as  con- 
tingent which  was  sure  to  happen.^ ^  This  argument,  however, 
is  fully  met  by  the  fact  that  Avhere  death  is  coupled  with  each 

that  a  fee  existed  in  the  first  taker  co  273  III.  434. 

in  Palmer  v.  Cook,  supra,  cannot  be  6i  Fifer    v.    Allen,    228    111.    507, 

sustained.  514;    Carpenter   v.  Sangamon   Trust 

58  2.35  111.  480.  Co.,  229  111.  486,  491. 

59  Stoller  V.  Doyle,  257  111.  369. 

164 


Ch.  IX]  FEE   SIMPLE  [^  166 

of  two  separate  contingencies  one  of  which  will  not  happen,  death 
in  connection  Avith  each  contingency  is  properly  spoken  of  as 
a  contingent  event.  The  element  of  incongruity,  therefore,  which 
is  sufficient  in  some  eases  to  confine  "die"  to  death  in  the 
life  of  the  testator  only,  is  absent.  The  moment,  however,  it  is 
conceded  that  in  the  case  put  "die"  means  die  at  any  time  be- 
fore or  after  the  testator,  in  accordance  with  the  general  rule,*^- 
all  the  possible  contingencies  are  exhausted.  It  is  then  arguable 
that  the  gift  over  is  in  effect  the  same  as  if  it  were  to  take  effect 
certainly  "at  the  death  of "  A  and  hence  A  takes  only  an  estate 
for  life."^  Although  the  point  may  not  have  been  strictly  in- 
volved, our  Supreme  Court  has  several  times  referred  to  A's 
interest  as  a  life  estate.^*  Whether  this  is  correct  will  become 
vitally  important  when  an  attempt  is  made  to  apply  the  doctrine 
of  destructibility  of  contingent  remainders  to  the  gifts  over.  If 
the  estates  be  legal  and  A  takes  merely  an  estate  for  life,  the 
gifts  over  will  be  contingent  remainders  and  destructible.*-'' 
If,  however,  A  takes  the  fee,  the  gifts  over  are  shifting  executory 
interests  and  not  destructible.** 

§  166.  (3)  Where  the  limitations  are  to  X  for  life,  re- 
mainder to  A  simpliciter,  with  a  gift  or  gifts  over  on  A's  death 
and  on  one  or  more  collateral  contingencies,  which  do  not  ex- 
haust all  the  possibilities:  If  the  limitations  are  by  devise  to 
X  for  life,  remainder  to  A  simpliciter,  with  a  gift  over  on  a  single 
contingency,  such  as  the  death  of  A  without  leaving  issue  or  chil- 
dren, to  B,  the  English  authorities  have  settled  it  that  "die" 
still  refers  to  death  at  any  time,  either  before  the  testator,  or 
afterwards,  or  after  the  death  of  X.""     Recent  decisions  of  our 

f'-  Post,  §  531.  gifts    over    that    a    life    estate    was 

03  Theobald  on  Wills,  7th  ed.  G.jS,  created. 

660.  05  Bauman  r.  Stoller,  23.1  111.  480 ; 

o-t  Johnson  I'.  Johnson,  98  111.  564;  3   111.  Law.   Eev.   383;    Kleiuhans    r. 

Healy    v.    Eastlake,    152    111.    424;  Kleinhans,  253  111.  620;   9  111.  Law 

Thomas  v.  Miller,  161  111.  60;  John-  Eev.   438. 

son  V.  Askey,  190  111.  58;    King  v.  go  See    Stoller    i-.    Doyle,   257    111. 

King,  215  111.  100;  Furnish  v.  Rog-  369. 

ers,    154    111.    569.      In   Johnson    v.  o"  O  'Mahoney    v.    Burdett,    L.    R. 
Johnson,    supra,    the    court    was    of  7  Eng.  &  Ir.  App.  Cas.  388  (1874), 
opinion  that  the  fact  that  a  charge  overruling  the   fourth   canon  of  Ed- 
was  laid  upon  the  first  taker  would  wards  v.  p]d wards,  15  Beav.  357. 
not  overcome  the  inference  from  the 

165 


il6l]  ESTATES  [Ch.  IX 

Supreme  Court,  however,  appear  both  to  support  and  to  con- 
tradict this  proposition.^^  Whatever  the  court  may  hold  as  to 
the  time  to  which  "die"  refers  in  this  class  of  cases,  A  will  take 
the  fee  so  long  as  the  gift  over  is  on  a  single  contingency  ^®  or  is 
on  several  contingencies  which  do  not  exhaust  all  the  possibili- 
tiesjo 

§  167.  (4)  Where  the  limitations  are  to  X  for  life,  re- 
mainder to  A  simpliciter  with  gifts  over  on  several  contin- 
gencies which  exhaust  all  the  possibilities:  Suppose,  for  in- 
stance, there  is  a  gift  over  to  A's  children,  if  he  has  any,  and  if 
not,  to  B.  Can  we  find  in  these  gifts  over  and  the  special  con- 
text an  inference  that  "die"  means  die  in  the  lifetime  of  the 
testator,  or  of  the  life  tenant  only  ? '  ^  If  so,  then  all  the  con- 
tingencies will  not  have  been  exhausted,  and  no  inference  will 
arise  that  A  takes  a  life  estate.  A  will,  therefore,  take  the  fee. 
That  is  the  result  reached  in  Lachenmyer  v.  GehlbachJ^  If 
' '  die ' '  is  not  restricted  to  death  in  the  lifetime  of  the  life  tenant 
the  contingencies  will  exhaust  all  the  possibilities,  and  an  argu- 
ment at  once  arises  that  the  remainder  to  A  is  for  life  only.  That 
was  the  position  taken  in  Kleinhans  v.  KleinhansJ^ 

It  is  clear  that  whether  in  the  case  last  put  "die"  refers  to 
death  before  the  death  of  the  life  tenant  and  that  only  and  the 
remainderman  takes  a  fee,  or  whether  "die"  refers  to  death  at 
any  time  and  the  remainderman  takes  a  life  estate,  is  so  deli- 
cately balanced  a  question  that  any  special  context  which  indi- 
cates the  estate  in  the  remainderman  or  the  time  to  which  death 
must  be  referred  will  be  decisive  of  the  result  reached.  In  Welch 
V.  Crowe,"^^  the  remainder  to  A  was  expressly  limited  in  "fee 
simple. ' '  That  settled  A 's  estate  as  a  fee,  and  the  inference  arose 
that  the  gifts  over  were  not  on  every  possible  contingency  and 

68  Post,  §  533.  ing    or    not    leaving    children,    and 

«9  Aloe  V.  Lowe,  278  111.  233.  that,   therefore,   since   one   event   or 

70  Pitzer  v.  Morrison,  272  111.  291.  the  other  must  happen  the  case  was 

Ti  The  Lord  Chancellor,  in  O 'Ma-  the    same    as  those   where   the   gift 

honey  v.  Burdett,  L.  R.  7  Eng.  &  Ir.  over   is  in  the  event  of   death  sira- 

App.  Cas.  388  (1874)  in  distinguish-  pliciter. 

ing  the  cases  of  Da  Costa  v.  Keir,  t2  266  111.  11;  post,  §533. 

3   Russ.   360,  and   Galland  v.  Leon-  73  2.'53  111.  620,  post,  §  533. 

ard,  1  Swanst.  161,  noted  the  fact  '*  278  111.  244.     See,  also,  Chapi»i 

that  in  both  there  was  a  gift  over  v.  Crow,  147  111.  219. 

in  the  double  event  of  either  leav- 

166 


Ch.  IXj 


FEE   SIMPLE 


:§iG8 


hence  "die"  meant  "die  only  before  the  death  of  the  life  tenant," 
so  that  every  contingency  would  not  be  provided  for. 

§  168.  Limitations  to  A  with,  power  in  A  to  dispose  of  an 
absolute  interest  in  the  property,  and  upon  failure  to  do  so 
over  to  B:  If  A's  interest  is  absolute  or  in  fee,  then  the  gift 
over  to  B  is  void.'^^  If  A  takes  only  a  life  estate  with  power  to 
dispose  of  the  fee,  a  gift  over  on  failure  to  dispose  of  the  fee, 
is  valid J<^  The  rule  of  law  by  which  the  gift  over  is  void  if  A's 
interest  is  absolute,  is  harsh,  and,  it  is  believed,  indefensible  on 
principle."^'  It  is  difficult,  therefore,  to  escape  the  suspicion  that 
the  court,  while  vigorously  proclaiming  it,  has  sought  to  nullify 
it  as  far  as  possible  by  construing  the  first  taker 's  interest  to  be 
a  life  estate.  Where  the  limitations  are  to  A  simpliciter,  with  a 
power  to  dispose  of  the  fee  or  absolute  interest,  and  a  gift  over 
of  what  "remains  undisposed  of"  at  the  first  taker's  death,  the 
court  has  regularly  held  that  A  has  only  a  life  estate."^  A 
fortiori,  when,  in  this  class  of  cases,  the  first  taker's  interest  is 
expressly  limited  "for  life,"  a  life  estate  it  remains.'^     The 


^5Post,   §§717-725. 

T6  Post,  §  726. 

T!  Post,   §§721-723. 

TsBergan  v.  Cahill,  55  111.  160; 
Hamlin  v.  United  States  Express 
Co.,  107  111.  443;  Healy  v.  East- 
lake,  152  111.  424;  Gruenewald  v. 
Neu,  215  111.  132;  Bradley  v.  Jen- 
kins, 276  111.  161. 

There  is  some  justification  for 
the  results  reached  in  these  cases 
in  the  special  context.  No  question 
of  course  can  arise  as  to  the  part 
disposed  of  by  the  first  taker.  The 
part  disposed  of  is  (in  all  the  above 
cases  except  Healy  v.  Eastlake,  152 
111.  424)  limited  to  take  effect  cer- 
tainly at  the  first  taker's  death  and, 
therefore,  may  be  regarded  as  fall- 
ing within  the  principle  and  scope 
of  the  cases  referred  to,  ante,  §  162. 
In  Healy  i'.  Eastlake,  s^ipra,  there 
were  two  gifts  over — one  if  the  first 
taker  died  without  leaving  issue,  and 
the   other,   if   she   did.      The   doubk' 


contingency,  therefore,  furnished  an 
argument  in  favor  of  the  first  taker 
having  only  a  life  estate  in  accord- 
ance with  the  principle  and  scope 
of  the  cases  referred  to,  ante,  §  165. 
■J9  Henderson  v.  Blackburn,  104 
111.  227;  Walker  v.  Pritchard,  121 
111.  221;  Ducker  v.  Burnham,  146 
111.  9;  Kirkpatrick  v.  Kirkpatrick, 
197  111.  144;  Welseh  v.  Belleville 
Savings  Bank,  94  111.  191;  Kauf- 
man V.  Breckinridge,  117  111.  305: 
In  re  Estate  of  Cashman,  134  111. 
•88;  Griffin  v.  Griffin,  141  111.  37:J; 
Skinner  r.  McDowell,  169  111.  365; 
Mann.  v.  Martin,  172  111.  18 ;  Bower- 
man  V.  Sessel,  191  111.  651;  Griffiths 
V.  Griffiths,  198  111.  632;  Dickinson 
V.  Griggsville  Nat.  Bank,  209  111. 
350;  Craw  v.  Craw,  210  111.  246; 
Kiemenschneider  v.  Tortoriello,  287 
111.  482.  See  al.so  Fairman  v.  Boal, 
14  111.  244;  Boyd  v.  Strahun,  36  111. 
355;  Markillie  v.  Ragland,  77  III. 
98;   Funk   v.  Eggleston,  92  111.  515. 


167 


§169]  ESTATES  [Ch.  IX 

court  never  permits  the  fact  that  a  power  is  given  to  dispose  of 
the  fee  or  absolute  interest  to  enlarge  the  life  estate  into  a  fee 
or  absolute  interest. ^"^  When,  however,  the  transfer  is  to  A  and 
' ' his  heirs  and  assigns, "  » i  or  "in  fee, "  ^2  or  " absolutely ' '  ^^ 
it  has  been  regularly  held  that  the  first  taker  had  the  absolute 
interest  and  the  gift  over  was  void.  In  a  number  of  cases  where 
the  transfer  was  not  to  A  "  and  his  heirs, "  or  to  A  "  in  fee, ' '  or 
to  A  "absolutely,"  it  has  been  held  that  A  took  a  fee  or  abso- 
lute interest  by  reason  of  a  strong  special  context  supporting 
the  creation  of  a  fee.^* 

§  169.  Miscellaneous  contexts  only  superficially  related — 
Limitations  to  A  and  his  children  and  their  children:  In 
Leiter  v.  Shepjmrd,^^  the  testator  devised  the  residue  of  his  real 
and  personal  estate  to  A  "to  be  held  by  her  in  her  own  right, 
then  to  her  children,  heirs  and  assigns  forever,"  and  "to  C,  and 
to  her  children,  heirs  and  assigns  after  her."  The  court  held 
that  A  and  C  took  indefeasible  estates  in  fee  simple  and  not 
life  estates  with  the  remainders  in  fee  to  their  children.  This 
is  correct.  By  the  statute  the  primary  effect  of  the  devise  gave 
A  and  C  a  fee.  The  question  was  whether  there  was  any  context 
w'hich  justified  a  construction  which  would  produce  a  life  estate. 

soWelsch     V.     Belleville     Savings  Kron  v.  Kron,  195  III.  181;  Orr  v. 
Bank,    94    III.    191;     Henderson    v.  Yates,  209  111.  222;   Williams  v.  El- 
Blackburn,  104  111.  227;   Skinner  v.  liott,  246  111.  548;  Wilson  v.  Wilson, 
McDowell,  169  111.  365;   Griffiths  v.  268  111.  270. 
Griffiths,  198  111.  632.  82  Stewart  v.  Stewart,  186  Ilh  60. 

Compare,  however,  the  cases  where  83  Wilson  v.  Turner,  164  111.  398. 

a    trustee    whose    active    duties    re-  84  in   Burton   v.   Gagnon,   180  111. 

quire  him  to  take  a  legal  estate  only  345,    the    devise    was    of    a    residue 

for  the  life  of  a  beneficiary,  is  held  "according   to   the   laws   of   descent 

to  take  a  fee  where  a  general  power  of  the  State  of  Illinois. ' '    In  Koef - 

of  sale  is  conferred  upon  him.   Post,  tier  v.  Koeffler,  185  111.  261,  the  de- 

§  191.  vise  was  "my  natural  son     *     *     * 

Compare     also     the    general    rule  shall    be    my    principal    heir. ' '      In 

stated  that  a   limitation   to   A  with  Dalryniple  v.  Leach,  192  111.  51,  the 

a   general   power   to   dispose   of   the  gift  over  failed  because  it  was  prec- 

fee    indicates    a    fee    simple.      Mar-  atory  and   too  indefinite   as  to  sub- 

killie   V.    Eagland,    77   111.    98,    101;  ject  matter,  and  the  gift  to  the  first 

Funk  V.  Eggleston,  92  111.  515,  533;  taker    was   to    a    wife    "of    all    my 

Fairman  v.  Beal,  14  111.  244,  245.  property,  real  and  personal,  arid  of 

81  Friedman    v.    Steiner,    107    111.  every   character   whatsoever. ' '      See 

125;   Ewing  v.  Barnes,  156  111.   61;  ante,  §159. 

Lambe    v.    Drayton,    182    111.    110;  85  85  111.242. 

168 


Ch.  TX]  fee  simple  [§  169 

The  word  "then"  in  the  devise  to  A,  and  "thereafter"  in  the 
devise  to  C,  furnished  an  argument  that  the  devise  was  to  A  and 
C  respectively  and  then,  or  at  their  death,  to  their  children.  On 
the  other  hand,  the  words  "heirs  and  assigns  forever"  were  regu- 
lar words  of  limitation  which  went  with  the  gifts  to  A  and  C  and 
in  both  cases  the  word  "children"  seems  to  have  been  used  as 
part  of  the  formula  of  words  of  limitation  and  not  as  a  separate 
word  of  purchase.  Assuming  that  one  of  these  considerations 
balanced  the  other,  we  have  left  gifts  to  A  and  C  simpliciter, 
which  under  the  statute  are  in  fee.  The  result  reached  and  the 
reasoning  of  the  Court  are  valuable  as  emphasizing  the  prima 
facie  effect  of  a  devise  to  A  simpliciter  and  that  the  context  which 
overcomes  it  must  be  decisive  and  not  doubtful. 

In  Schaefer  v.  Schaefer,^^'  real  estate  was  devised  to  a  daugh- 
ter "for  her  sole  use  and  benefit,  and  of  her  children  and  their 
children  thereafter— but  in  the  event  that  my  daughter  *  *  * 
should  die  and  leave  no  children  as  heirs"  over  to  J  and  his 
heirs.  It  was  held  that  the  daughter  took  only  an  estate  for  life. 
Here  the  word  "children"  is  not  included  in  the  words  of  limi- 
tation applicable  to  the  gift  to  the  daughter.  The  phrase  is 
"children  and  their  children."  This  suggests  that  the  children 
are  to  take  in  fee.  The  second  use  of  the  word  "children"  is 
in  effect  an  attempt  to  use  a  word  of  limitation.  Hence  the  de- 
vise is  to  the  daughter  and  in  fee  to  her  children  thereafter— 
i  e.,  after  the  daughter's  death.  This  brings  the  gift  to  the 
daughter  within  the  class  of  cases  where  the  limitations  are  to 
A  and  "at  his  death"  to  B,  and  where  A  regularly  takes  a  life 
estate.'^'  Then  too,  the  gift  over  is  really  on  two  contingencies, 
one  of  Avhich  must  happen— if  A  has  children  and  if  she  does 
not.  Under  the  authorities  already  noted,  this  furnished  an 
argument  that  the  first  taker  had  only  a  life  estate.^^ 

In  Straivhridge  v.  Strowhridge,^'^  the  devise  was  to  several 
children  (naming  them)  "and  to  their  children  forever."  The 
placing  of  this  last  clause  and  the  word  "forever"  clearly  indi- 
cate an  attempted  use  of  words  of  limitation.  Hence  there  was 
no  ground  for  departing  from  the  prima  facie  effect  of  the  stat- 
ute conferring  a  fee  upon  the  children  named.^*^ 

8«141    111.    337.  »»220   111.   61. 

87  Ante,  ^162.         '  9o  See    also    Dick    r.    Rioker.    222 

ssAnte,  §165.  HI-  -113,  417. 

169 


§  169]  ESTATES  [Ch.  IX 

In  Conner  v.  Gardner,^^  after  a  devise,  expressed  only  by  im- 
plication from  the  whole  instrument,  to  the  testator's  daughter, 
this  provision  occurred:  "the  shares  or  portions  of  my  estate 
falling  to  my  daughters,  respectively,  shall  be  theirs  and  their 
child's  or  children's  exchisively."  The  italicized  words  were 
held  to  be  merely  attempted  words  of  limitation,  so  that  the 
daughters  took  the  fee.  Other  elements  of  the  context  aided 
this  result. 

In  Barclay  v.  Piatt, ^-  the  devise  was  "for  the  benefit  of"  M 
and  J,  "for  them  and  their  children,  should  they  have  any." 
This  was  construed  to  give  M  and  J  life  estates  with  a  remainder 
in  fee  to  their  children,  Avhich  vested  in  those  born,  and  opened 
to  let  in  those  afterwards  born.  The  inference  from  the  phrase 
used,  that  "children"  was  not  an  attempted  word  of  limitation, 
may  readily  be  approved.  The  basis,  hoAvever,  for  holding  that 
the  children  did  not  take  as  tenants  in  common  with  M  and  J 
is  not  so  clear.  There  is  no  phrase  which  suggests  that  at  the 
deatli  of  ^I  and  J  the  children  are  to  take.  If  the  statute  had  been 
effective  to  create  a  fee,  ]\I  and  J  and  their  children  would  have 
taken  as  tenants  in  common.  This  would  have  prevented  any 
after  born  children  from  sharing  and  the  context  and  circum- 
stances here  presented  were  such  as  to  indicate  that  after  born 
children  were  to  share. 

Suppose  that  personalty  be  limited  to  A  "  and  the  issue  of  her 
body,"  are  the  words  "issue  of  her  body"  attempted  words  of 
limitation  so  that  an  estate  tail  in  personal  property  is  intended, 
with  the  result  that  an  absolute  interest  in  the  personal  property 
is  created  in  A?  Or  is  "issue"  used  as  a  word  of  purchase? 
If  so,  do  the  issue  living  take  jointly  with  A,  or  does  A  take  a 
life  interest  with  a  gift  over  to  such  issue  as  may  be  born  to  her 
in  her  lifetime?  The  preceding  authorities  suggest  the  possibil- 
ity of  any  one  of  these  results  and  yet  cannot  be  said  to  be  de- 
cisive in  favor  of  any.  The  proper  result  to  be  reached  where 
personalty  is  limited  to  A  and  the  "issue  of  her  body"  rests  upon 
considerations  which  can  best  be  dealt  with  in  the  chapter  on  es- 
tates tail.»3 

91  230  lU.  258.  93  See  post,  §  200. 

02  170  111.  384. 

170 


Ch.  IX]  FEE  SIMPLI:  [§  1"1 

TITLE  m. 
LIMITATIONS  TO  "A  OR  HIS  HEIRS." 

§  170.  ( 1 )  Where  there  is  no  preceding-  estate — In  a  con- 
veyance inter  vivos:  It  was  said  by  Coke"*  that,  if  real 
estate  were  conveyed  inter  vivos  to  "A  or  his  heirs,"  A  had  "but 
an  estate  for  life,  for  the  uncertainty."  An  early  ^Massachusetts 
ease"^  suggests  that  "or"  be  read  "and"^«  and  that  A  take 
the  fee.  Under  Sec.  I'.i  of  our  Conveyancing  Act,  A  would 
clearly  take  the  fee  and  the  words  "or  his  heirs"  would  be  in- 
operative as  words  of  purchase,  or  would  be  looked  upon  as  an 
effort  to  use  informal  words  of  limitation  intended  to  create  a 
fee. 

§  171.  By  way  of  devise:  If  A,  in  the  case  put,  survives 
the  testator,  he  takes  the  absolute  interest  in  personalty,  and, 
since  Sec.  13  of  our  Conveyancing  Act,  a  fee  in  real  estate.^'  If 
A  dies  before  the  testator,  the  question  arises  whether  "or  his 
heirs"  is  merely  an  informal  expression  indicating  words  of 
limitation  intended  to  carry  a  fee  (in  which  case  there  would  be 
a  lapsed  devise  or  bequest  "^ ) ,  or  does  it  mean  that  the  heirs  of 
A  are  to  take  in  his  place.  The  latter  seems  to  have  been  the 
usually  accepted  construction.^^ 

Where  the  gift  is  to  a  class  of  persons,  as  the  children  of  A, 
"or  their  heirs,"  and  the  heirs  of  a  child  are  regarded  as  taking 
if  the  child  dies  before  the  testator,  the  further  question  arises 
whether  the  heirs  of  a  child  of  A,  who  died  before  the  will  was 
made,  take.  This  is  said  to  depend  upon  whether  the  phrase 
"or  their  heirs"  was  merely  substitutionary  or  a  special  original 
gift.  If  the  former,  the  heirs  of  the  children  dying  before  the 
will  was  executed,  do  not  take ;  if  the  latter,  they  do.  The  Eng- 
lish cases  seem  regularly  to  have  held  a  devise  or  bequest  to  a 
class  "or  their  issue"  to  be  properly  substitutionary,  so  that  the 
issue  of  members  of  the  class,  dead  at  the  date  of  the  will,  could 

9*  Co.  Lit.  8b,  3  Gray's  Cases  on  v.   Chicago   Title   &   Trust   Co.,   187 

Prop.,  2nd  ed.  304.  111.   42;    Smith    r.    Dellitt,    249    III. 

95  White    V.    Crawford,    10    Mass.  113. 

183,  188  (1813).  97  Theobald  on  Wills,  7th  ed.  676; 

9«  See   the    following  cases  where  Adshead  v.  Willetts,  29  Beav.  ;^58. 

"or"  construed  "and:"  Eandig's  as  Sloan  r.  Hanse,  2  Rawie   (Pa.) 

Executors    v.    Smith,    39    111.    300;  28. 

Oleott  V.  Tope,  213  111,  124;  Ayers  99  Straw  v.  Barnes,  250  111.  481. 

171 


§172]  ESTATES  [Ch.  IX 

not  take.i  In  Straw  v.  Barnes^  however,  where  the  devise  was 
to  "my  brother  and  sister  or  their  heirs,"  the  court  reached  a 
different  result  and  the  heirs  of  a  brother  and  sister,  who  died 
before  the  will  was  executed,  were  held  to  be  entitled. 

§  172.  (2)  Where  there  is  a  preceding  life  or  other  estate 
— Limitations  in  a  conveyance  inter  vivos:  Suppose  the  lim- 
itations are  to  X  for  life,  remainder  to  "A  or  his  heirs."  If 
this  be  in  a  conveyance  inter  vivos,  operating  at  common  law, 
or  under  the  Statute  of  Uses,  A  would,  it  is  believed,  take  only 
a  remainder  for  life  with  a  contingent  remainder  over  to  his 
heirs  if  A  died  before  X.  But  A  would  take  only  a  life  estate 
in  remainder,  while  his  heirs,  if  they  became  entitled,  would 
take  the  fee.  What  results  (if  any)  the  English  cases  reached, 
are  unknown  to  the  writer.  Under  Sec.  13  of  our  Conveyancing 
Act,  A  would  take  the  fee  if  he  took  at  all.  But  the  question 
arises  whether  "or  his  heirs"  will  not  be  treated  as  words  of 
limitation  so  that  A  alone  takes  the  fee  without  any  gift  over, 
if  he  dies  before  the  death  of  the  life  tenant.  One  would  sup- 
pose that  since  shifting  gifts  over  by  deed  were  valid,  and  since 
there  was  an  obvious  reason  for  a  gift  over  in  the  fact  that  A 
might  die  before  the  death  of  the  life  tenant,  the  construction 
adopted  where  bequests  of  personalty  were  concerned  ^  would 
be  followed,  and  "or  his  heirs"  would  be  construed  as  a  gift 
to  A's  heirs  if  he  died  before  the  death  of  the  life  tenant. 

§  173.  By  way  of  devise:  It  seems  to  have  been  usually 
held,  where  the  limitations  were  of  personalty,  that  A  took  abso- 
lutely if  he  survived  the  life  tenant.  If  he  survived  the  testator 
but  died  before  the  life  tenant,  his  heirs  took  absolutely.^  Such 
was  the  holding  in  Eheij  v.  Adamsfi  The  same  result  has  been 
reached  where  real  estate  was  involved.*' 

1  Theobald   on  Wills,  7th  ed.  673.       M 'Dermott,  2  M.  &  K.  69;   Keiff  v. 

2  250  111.  481.  Strite,  54  Md.  298,  304. 

3  Post,   §  173.  5  135  111.   80. 

4Doody   V.    Higgins,    2    K.    &    J.  e  Robb  v.  Belt,  12  B.  Mon.   [Ky.] 

729;   Finlason  v.  Tatlock,  L.  R.  9,  643.     See  also  Bates  v.  Gillett,  132 

Eq.    Cas.    258;    In    re    Craven,    23  111.   287,  where  the  limitations  were 

Beav.    333;    Parsons    -;;.    Parsons,    8  to   A  for  life,  then   to  her  child   or 

Eq.   260;    Neilson   v.   Monro,  27   W.  its   descendants,  the   descendants  of 

R.  936;  In  re  Stannard,  Stannard  v.  each   child   to   take   one   share.     See 

Burt,   52   L.   J.   Ch.    355;    Jacobs  v.  also   the   special   concurring   opinion 

Jacobs,    16    Beav.    557;    Gittings    v.  of  Cartwright,  J.,  in  Preston  v.  John- 

172 


ClI.  IXJ  PEE   SIMPLE  l§  173 

There  are  good  reasons  in  support  of  these  results.  First: 
The  turning  of  "or"  into  "and,"  so  as  to  make  the  gift  "to  A 
and  his  heirs,"  is  a  forced  and  unnatural  process  which  prbna 
facie  does  violence  to  the  express  language.  On  the  face  of  it 
the  phrase  "to  A  or  his  heirs"  has  the  meaning  which  has  al- 
ways been  attributed  to  it  where  the  subject  matter  of  the  gift 
was  personal  ])i'()pei'ty, — namely  to  create  alternative  limita- 
tions. Since  ^traw  v.  Barnes,''  in  which  it  was  held  that  a 
devise  of  real  estate  to  brothers  and  sisters  "or  their  heirs" 
naturally  and  primarily  created  distinct  gifts  to  the  brothers 
and  sisters  on  the  one  hand,  or  to  their  heirs,  if  the  brothers 
and  sisters  died  before  the  testator  or  were  dead  at  the  date  of  the 
will,  there  is  no  reason  for  not  taking  the  same  phrase  in  the 
same  way  where  the  same  limitations  follow  a  life  estate.  Sec- 
ond: The  reason  given  for  construing  "A  or  his  heirs"  as 
"A  and  his  heirs"  where  real  estate  is  involved,  was  that  if 
this  had  not  been  done  when  the  question  first  arose  in  the  18th 
century,  A,  if  he  took,  would  have  had  only  a  life  estate.  This 
was  regarded  as  so  far  from  the  expressed  intent  as  to  warrant 
the  change  of  "or"  into  "and."  Since  the  Wills  Act  of  1 
Victoria,  however,  and  since  legislation  on  similar  lines  in  this 
country,  which  make  a  gift  to  A  shnplioiter  prima  facie  a  fee, 
this  reason  fails,  for  now  A,  if  he  takes  in  possession  at  all, 
will  take  the  fee,  which  wall  be  indefeasible.  If  A  does  not  take 
in  possession,  his  heirs  will  take  the  indefeasible  fee.  Today, 
therefore,  there  is  no  more  reason  for  not  taking  the  language  as 
it  stands  in  its  primary  meaning  than  there  was  formerly  where 
the  subject  matter  of  the  gift  was  personal  pro])erty.  Third: 
Hawkins  on  Wills  ^  and  Theobald  on  Wills  ■'  both  assume  that 
for  the  reasons  just  indicated,  the  courts  in  England  would 
today  give  the  same  construction  to  "A  or  his  heirs"  where  the 
subject  matter  was  real  estate,  as  they  regularly  did  where  it 
was  personal  property.  Fourth:  This  position  is  clearly  main- 
tained by  ^y^ugf^eld  v.  Wingfield,^*^  where  there  was  a  life  estate 

son,   226   111.    447.      In    Golladay    v.  tlie    roniainder    was    to    children    or 

Knock,  235  111.  412,  a  remainder  to  issue. 

"Moses  and  his  heirs,"  was  treated  '250  111.  481. 

as    if    it    were    to    "Moses    or    his  s  p.  180. 

heirs."     See  post,   §§323,  382.     In  9  6th  ed.  400. 

Brochbeller  v.  Wilson,  228  111.   502,  lo  L.  R.  9  t'h.  Div.  658. 

173 


H73]  ESTATES  [Ch.  IX 

ill  a  mixed  fund  of  real  and  personal  property,  and  a  remainder 
after  tlie  life  estate  to  the  testator's  brothers  and  sisters  then 
living  ''or  their  heirs."  It  Avas  held  that  the  gift  was  substitu- 
tionary. Hall,  V.  C,  suggested  that  before  the  Wills  Act  the 
remaindermen  might  liaA^e  had  a  fee,  because  otherwise  they 
would  have  had  only  a  life  estate  if  they  took  possession  at  all, 
and  that  a  ditferent  rule  should  obtain  after  the  Wills  Act.  The 
earlier  cases  of  Wright  v.  Wright  and  Lachlan  v.  Beynolds  were 
distinguished.^^ 

There  are,  of  course,  cases  Avhere  courts  have  been  persuaded 
by  a  special  context,^ ^  qj.  the  fact  that  the  testator  was  obviously 
illiterate,!-  to  hold  that  "or"  was  to  be  read  "and"  and  that 
A  took  the  fee  Avithout  any  alternative  or  substitutionary  gift 
over."'"*  It  happens  in  these  cases  that  real  estate  was  involved 
and  recently  our  Supreme  Court  seems  to  have  proceeded  as 
if,  where  real  estate  was  involved,  these  cases  not  only  repre- 
sented the  general  course  of  decision  (apart  from  any  special 
context),  but  also  established  a  rule  of  construction  which  it 
would  be  difficult  for  a  special  context  to  overturn.  In  Ortmayer 
V.  Elcock,^^  there  was  presented  for  construction  the  phrase 
"or  their  heirs,  if  deceased,"  where  the  limitations  were  in 
substance  to  A  for  life,  then  to  B,  C,  D  and  E,  "or  their  heirs, 
if  deceased."  The  court  held  that  B,  C,  D  and  E  took  at  once 
vested  and  indefeasible  interests  in  fee,  subject  to  the  life  estate, 

11  See  also  Flournoy  v.  Flournoy,  1  G.  F.  &  J.  128;  Parkin  v.  Knight, 
Bush  (Ky.)  515;  Taylor  v.  Conner,  15  Sim.  83.  It  made  no  difference 
7  Ind.  115,  and  Robb  v.  Belt,  12  B.  in  the  above  cases  that  the  gift  of 
Mon.  (Ky.)  643,  for  cases  tending  real  estate  was  included  in  a  mixed 
in  the  same  direction  as  Wingfield  fund  of  real  and  personal  property, 
V.  Wingfield,  supra.  as  where  the  gift  was  a  residue  of 

1 2  Wright  V.  Wright,  1  Ves.  Sr.  real  and  personal  property  "to  B 
409  ;  Lachlan  r.  Reynolds,  9  Hare  for  life,  and  then  to  A  or  his  heirs. ' ' 
Ch.  796.  Greenway  v.  Greenway,  2  De  G.  F. 

13  Miller  v.  Gilbert,  144  N.  Y.  68.       &  J.  128;  Parkin  v.  Knight,  15  Sim. 
!•»  See  also  Williams  v.   Williams,       83;   Sloan  v.  Hanse,  2  Rawle   (Pa.) 

91   Ky.   547;   Brasher  v.   Marsh,   15  28.     The  rule  seems  to  have  obtained 

Ohio  St.  103.  after  the  passage  of  the  Wills  Act 

Where    the    gift    was    "to    A    or  of   Victoria,   making   a   simple   gifl 

the   heirs   of   his   body "   or   "  to    A  to  A  prima  facie  the  gift  of  a  fee 

or  his  issue,"  it  has  been  held  that  simple.      Harris    v.    Davis,    1    Coll. 

A  had  an  estate  tail.    Read  v.  Snell,  416;    Greenway  v.   Greenway,  2  De 

2  Atk.  642;  Harris  v.  Davis,  1  Coll.  G.  F.  &  J.  128. 
416;   Greenway  v.   Greenway,  2   De  is  225  111.  342. 

174 


Ch.  IX]  PEE   SIMPLE  [§!"•'» 

and  that  there  was  no  gift  over  to  their  lieiis  in  ease  any  of 
them  died  before  the  termination  of  tlio  life  estate."'  Even,  h(nv- 
ever,  if  the  distinction  sliould  obtain  in  this  state  tliat  a  gift 
"to  A  or  his  heirs"  means  one  thing  with  regard  to  realty,  and 
another  with  regard  to  personalty,  and  that  the  same  language 
may  have  two  different  meanings  when  applied  to  a  mixed  fund 
of  realty  and  personalty,  still  the  decision  reached  in  Ortmaijer 
V.  Elcock  is  inexplicable.  The  sj)ecial  context  may  always  make 
it  clear  that  a  substitutionary  or  alternative  gift  was  provided. 
Thus,  in  Speakinan  v.  Spfahnnin  '"  there  was  a  gift  to  A  for 
life  with  a  remainder  to  B,  ('  and  1)  "ov  tlicir  heirs  of  anyone 
that  might  happen  to  be  dead."'  It  was  held  that  the  language 
here  was  too  explicit  to  avoid  construing  "or  their  heirs"  as 
introducing  a  substitutionary  gift.  It  is  submitted  that  the 
addition  of  the  words  *'if  deceased"  in  Ortmaiier  v.  Elcock 
presents  a  special  context  in  all  respects  similar  and  fjuite  as 
strong  as  that  appearing  in  Speakman  v.  Speakman.'^'^ 

§174.  Meaning-  of  "or  his  heirs"  where  the  words  intro- 
duce a  substitutionary  gift:  Having  determined  that  "or  his 
heirs"  makes  a  substitutionary  gift  where  the  limitations  are 
to  A  for  life,  then  to  K  or  his  heirs,  the  phrase  "or  his  heirs" 
must  be  expanded  to  "or  in  case  of,"  or  "at"  B's  death,  to 
his  heirs.  The  question  then  arises,  to  what  period  does  "death" 
refer.  If  it  refers  to  death  at  any  time  it  might  cut  A's  interest 
down  to  a  life  estate,  which  is  out  of  the  question.  Nor  can  it 
be  confined  to  the  death  of  B  during  the  testator's  life  only. 
It  means  death  of  B  before  the  period  of  distribution.  Hence 
if  A  renounces  the  life  estate  .so  that  B's  remainder  is  acceler- 
ated, no  gift  over  can  occur. ^^ 

§  175.  (3)  Where  there  is  a  preceding  life  estate  with 
gifts  over  on  contingencies  with  an  ultimate  gift  over  to  "A 
or  his  heirs":  In  such  a  case  the  context  raises  a  legitimate 
inference  that  the  ultimate  gift  is  really  to  A  and  that  "or  his 
heirs"  is  merely  an  informal  effort  to  add  words  of  limitation 
which  signify  that  if  A's  heirs  take,  they  take  by  descent  from 

16  See,    however,    the    special    con-  .lac.  &  W.  381;   Richey  v.  Johnson, 

curring   opinion    of    Cartwright,    J.,  30   Ohio  St.    288;    Bates   v.  Gillett, 

in  Johnson  v.  Preston,  226  111.  447.  132  111.  287. 

1'  8  Hare  180.  i"  Sherman   v.  Flack,  283  111.  457. 

18  See  also  Horseman  v.  Abbey,  1 

175 


§  176]  ESTATES  [Ch.  IX 

liim  and  not  as  independent  purchasers.  Such  a  result  has  been 
reached  in  this  state  Avhere  the  limitations  were  created  by  will.-*' 
§  176.  (-t)  Where  the  ultimate  gift  is  to  the  grantor  "or 
his  heirs":  In  such  a  case,  a  reversion  is  created  in  the 
grantor.- 1  So  where  the  provision  is  that  the  land  is  to  revert 
back  to  the  grantor's  heirs,  a  reversion  is  created  in  the 
grantor.-^ 

TITLE  IV. 

CONFLICTING    PROVISIONS— CONFLICT    BETWEEN    THE 
PREMISES  AND  THE  HABENDUM. 

§  177.  Courts  attempt  to  reconcile  apparently  conflicting 
clauses:  ^^  AVhere  the  same  land  was  devised  to  two  differ- 
ent persons,  both  took  as  tenants  in  common. ^-i  So  where  A  was 
devised  a  life  estate  in  lands  and  later,  without  reference  to 
the  life  estate,  the  same  lands  were  devised  to  B  in  fee,  B  took 
only  a  remainder.^^  So  where  A  was  devised  forty  acres  and 
then  all  the  testator's  lands  w'ere  devised  to  a  named  person 
in  fee,  with  a  direction  that  they  be  sold  after  A's  death,  A 
took  the  fee  to  the  forty  acres  and  the  later  clause  was  held  to 
devise  only  the  lands  excepting  tlie  forty  acres.-*'  Where  the 
premises  of  a  deed  granted  to  "A  and  the  heirs  of  his  body" 
and  the  habendum  was  to  "A  and  liis  heirs,"  the  opinion  of 
Lord  Coke  was  that  A  took  a  fee  tail  Avith  a  remainder  in  fee.-'^ 
Our  Supreme  Court  would  hardly  regard  similar  limitations  as 
reconcilable  in  this  manner  for  tlie  reason  that  estates  tail  have 
long  since  been  abolished  in  this  state  and  turned  into  estates 
for  life  with  remainder  to  the  life  tenant's  children  in  fee  ^^ 

20  Smith  V.  Dellitt,  249  111.  113.  apparent  conflict  by  holding  that  it 

21  Hobbic  V.  Ogden,  178  111.  357.  was  the  life  estate  which  the  widow 

22  Akers  v.  Clark,  184  111.   136.  was    to    hold    absolutely.      Kratz    v. 

23  Eckhart  v.  Irons,  128  111.  568.  Kratz,  189  111.   276. 

Observe  the  following  eases  where  -*  Day   v.  "Wallace,   144   111.   256. 

it  was  held  that  there  was  no  con-  25  Rjckner  v.  Kessler,  138  111.  636; 

flict   between   the   premises  and   the  Rountree  v.  Talbot,  89  111.  246. 

habendum.      Jones  i;.   King,   25   111.  26  Brownfield    v.    Wilson,    78    III. 

334;    Cooper  1;.   Cooper,  76  111.   57.  467. 

Where  there  was  a  devise  to  the  27  Co.    Lit.    21a;    see   also    Corbin 

widow    during    widowhood,    to    hold  v.  Healy,  20  Pick.  514  (Mass.  1838). 

absolutely,   the  court   reconciled   the  28  post,  §  406. 

176 


ClI.  IX J  FEE   SIMPLE  [§  178 

and  the  gift  over  or  reuiuiiider  in  fee  after  the  estate  tail  may  he 
regarded  as  destroyed  by  the  statute.^'' 

§  178.  Where  an  actual  conflict  occurs — (1)  The  rule  as  to 
deeds — The  view  of  the  common  law:  It  was  a  well  settled 
eonin\on-law  rule  of  long  standing  that  if  the  premises  and 
hahendum  of  a  deed  contain  different  express  limitations  of  the 
estate  whieli  are  repugnant  to  each  other,  the  construction  which 
is  most  beneficial  to  the  grantee  will  be  adopted/'"  Pursuant 
to  this  rule  the  hahemlum  where  sucli  repugnance  occurs  may 
enlarge  an  estate  expressly  contained  in  the  pi-emises,  but  may 
not  abridge  or  make  void  any  such  estate/' ^  The  clearest  case 
for  the  application  of  this  rule  seems  to  have  been  where  the 
premises  contained  an  express  grant  of  a  fee  simple  by  the  use 
of  the  words  "to  the  grantee  and  his  heirs,"  while  the  hahendum 
was  "to  the  grantee  for  life"  or  for  a  term  of  years.  In  such 
a  case  the  grantee  took  the  fee.^-^  From  the  English  writers 
and  cases  it  would  appear  that  this  rule  was  one  of  marked 
rigidity.  If  the  premises  expressly  designated  the  fee  and  the 
habendum  a  life  estate,  no  extended  argument  from  the  sur- 
rounding circumstances  that  the  grantor  meant  a  life  estate 
would  have  been  effective  to  prevent  the  creation  of  the  fee.  As 
Challis  3^  states  it:  "The  hahendum  cannot  abridge  any  estate 
contained  in  the  premises,  unless  such  estate  either  is  not  ex- 
pressly contained,  or  else  is  not  capable  of  taking  effect."  This 
he  shows  is  the  result  of  the  authorities.''-'  The  same  rule  has 
often  been  referred  to  by  our  Supreme  Court. •''^ 

§  179.  The  common  law  rule,  how  far  modified — Where  the 
premises  provide  for  the  lesser  estate  and  the  habendum  for 
the  larger:     Suppose  the  premises  grant  an  estate  to  A  and 

29Kolmer    v.   Miles,   270    111.    20;  U.   C.   Q.   B.   405;    Langlois    v.  Les- 

13   111.   Law  Rev.   132;   post,   §411.  perance,  22  Ont.  Rep.  682. 

30  Elphinstone,  Interpretation  of  35  Baulos  v.  Ash,  19  111.  187;  Rig- 
Deeds,  Rule  66,  p.  217.  gin  v.  Love,  72  111.  553,  555;   Jones 

3iChallis,  Real  Property,  eh.  30.  v.  King,  25  111.  334,  337;   Cooper  r. 

32  Winter  v.  Gorsuch,  51  Md.  180;  Cooper,  76  111.  57,  61;  Eckhart  v. 
Robinson  v.  Payne,  58  Miss.  690;  Irons,  128  111.  568,  "580;  Lambe  f. 
Ratliffe  v.  Marrs,  87  Ky.  26;  Smith  Drayton,  182  111.  110,  113;  Sassen- 
V.  Smith,  71  Mich.  633;  Wood  v.  berg  v.  Huseman,  182  111.  341,  350; 
Taylor,  30  N.  Y.  Supp.  433.  Welch   v.  Welch,  183  111.   237,  238; 

33  Real  Property,  ch.  30.  Anderson    v.    Stewart,   285   111.    605, 
3*  See  also  Owston  v.  Williams,  16       611. 

Kales  Fut.  Int.— 12  J^yy 


§  179]  ESTATES  [Ch.  IX 

the  heirs  of  his  body,  while  the  habendum,  provides  for  an  estate 
to  A  and  his  heirs  and  assigns  forever,  and  suppose  these  clauses 
cannot  be  regarded  as  reconcilable/'^^  It  has  been  held  that  A 
takes  the  fee.^''^ 

In  Griswold  v.  Hicks,^^  the  deed  in  question  recited  that  it 
was  between  A,  party  of  the  first  part,  and  B,  C  and  D  "and 
the  heirs  of  their  bodies,  party  of  the  second  part,"  By  the 
premises  the  conveyance  was  to  B,  C  and  D  "and  their  heirs 
and  assigns,  as  aforesaid,  forever  *  *  *  meaning  and  intending 
by  this  conveyance  to  convey  to  my  said  children  the  use  and 
control  of  said  real  estate  during  their  natural  lives  and  at 
their  death  to  go  to  their  children;  should  they  die  -without 
issue  to  their  legal  representatives;"  habendum  to  the  party 
of  the  second  part  "their  heirs  and  assigns  forever."  It  was 
held  that  B,  C  and  D  took  life  estates  with  the  remainder  to 
their  children.  One  ground  for  this  was  that  "heirs  and  as- 
signs as  aforesaid"  meant  "heirs  of  the  body,"  as  aforesaid. 
Hence  by  the  premises  an  estate  tail  was  created  which  the 
statute  turned  into  a  life  estate  with  a  remainder  to  the  donee's 
children.  The  case,  therefore,  is  not  an  instance  of  the  premises 
conveying  the  lesser  estate  prevailing  over  the  habendum  which 
designated  the  larger.  Another  ground  for  the  decision  was 
that  on  the  whole  context  it  was  the  expressed  intent  that  B, 
C  and  D  should  have  only  life  estates  with  the  remainder  to 
their  children  and  that  this  actually  expressed  intent  must  pre- 
vail. This  ground  is  hardly  consistent  with  the  strict  and  arti- 
ficial rule  that  the  habendum  which  described  the  larger  estate 
would  prevail  over  the  premises  which  described  the  lesser. 

In  Coogan  v.  Jones  ^^  the  deed  conveyed  and  warranted  to 
A  "and  her  bodily  heirs,"  reserving  a  life  estate  in  the  grantor, 
and  "at  his  death,  then  the  above  described  tract  of  land  to 
go  into  full  ownership  and  control"  of  the  said  A  "or  her  heirs." 
If  "full  ownership  and  control"  meant  a  fee,  then  the  latter 
clause  conflicted  with  the  former  but  enlarged  its  meaning. 
Under  the  common  law  rule  the  habendum,  could  be  used  to 
enlarge  but  not  restrict  the  estate  designated  by  the  premises. 

3«  Ante,  §  177.  38  132  111.  494. 

37  Tennison  v.  Walker,  190  S.  W.  39  278  111.  279. 

9  (Mo.  1916). 

17g 


Ch.  TX]  PEE   SIMPLE  [§  181 

By  that  rule  a  fee  would  have  been  created.-*"  But  the  court 
held  that  a  fee  tail  was  created.  This  may  proceed  upon  the 
gfround  that  "full  ownership  and  control"  meant  only  full 
ownership  and  control  of  the  estate  already  created,  namely, 
a  fee  tail,  and  that  A  or  her  heirs,  meant  A  or  the  heirs  of  her 
body. 

§  180.  Where  the  premises  provide  for  the  larger  and  the 
habendum  the  lesser  estate — Modification  of  the  conmion  law 
rule  by  statute:  Where  a  statute  provides  "if  two  clauses 
in  a  deed  be  utterly  inconsistent,  the  former  must  prevail,  but 
the  intention  of  the  parties,  from  the  whole  instrument,  should, 
if  possible,  be  ascertained  and  carried  into  effect,"  ^^  the  haben- 
dum which  mentions  a  life  estate  prevails,  as  a  matter  of  course, 
over  the  premises  designating  a  fee  simple  by  the  use  of  the 
words  "to  the  grantee  and  his  heirs."  *2  go  also  where  the  fee 
in  the  premises  is  created  by  the  force  of  Sec.  13  of  our  Con- 
veyancing Act  without  the  use  of  the  word  "heirs,"  then,  since 
the  statute  throws  the  whole  deed  open  to  take  effect  according 
to  the  expressed  intent,  the  habendum  may  be  relied  upon  al- 
most as  a  matter  of  course  to  create  a  life  estate.^^ 

§  181.  Tendency  apart  from  statute  to  modify  the  strict- 
ness of  the  common  law  rule:  In  this  country,  the  courts 
have  seemed  disinclined  to  follow  the  common  law  rule  in  all 
its  strictness.  Even  where  the  court  held  that  a  fee  had  been 
created  according  to  the  premises  by  the  use  of  the  word  "heirs" 
as  a  word  of  limitation,  it  will  be  found  a.sserting  its  authority 
to  find  that  a  life  estate  had  been  created  by  the  habendum 
if  from  the  whole  context  such  w^as  the  expressed  intent.-*^  In 
several  cases  courts  have  supported  the  holding  that  a  fee  had 

40  Compare,    DuflEleld    v.    Duffield,  ineffective  to  create  a  fee  tail.     If 

268  111.  29.  effective  to  create  a  fee  in  accord- 

■•1  Ga.    Code   1867,   sec.    2655.  ance  with  the  view  expressed,  post, 

42  Remshart  v.  Ham,  40  Ga.  344.  §  198,  by  the  operation  of  sec.  13  of 

43  Humphrey  v.  Foster.  13  Gratt  the  Conveyancing  Act,  then  it  was 
(Va.)  653;  Riggin  v.  Love,  72  111.  proper  for  the  court,  in  accordance 
553;  Welch  v.  Welch,  183  111.  237;  with  the  above  cited  cases,  to  resort 
Sassenberg  v.  Huseman,  182  111.  to  the  habendum  to  determine  the 
341;  Coogan  v.  Jones,  278  111.  279,  character  of  the  estate  created. 
285;  Anderson  v.  Stewart,  285  111.  44  Robinson  v.  Payne,  58  Miss. 
605,  611.  690,  709;  Eatlifife  v.  Marrs,  87  Ky. 

In   Dick  V.   Ricker,   222   III.   413.       26. 
the  granting  clause  of  the  deed  was 

179 


§181]  ESTATES  [Ch.  IX 

beeu  created  accordiiig  to  the  premises,  not  upon  the  rule  of 
construction  alone,  but  also  on  the  ground  that  such  on  the 
entire  context  Avas  the  expressed  intent  of  the  grantor.-*^  It  has 
been  held  that  where  the  premises  grant  to  another  "his  heirs 
and  assigns  forever  subject  to  the  limitations  hereinafter  ex- 
pressed as  to  part  thereof"  the  habendum  directing  a  life  estate 
as  to  one-half  prevailed  over  the  premises.'*'^  Repeated  instances 
are  to  be  found  where  the  premises  contain  an  express  grant 
of  a  fee,  but  where  the  lesser  estate  expressed  in  the  haben- 
dum prevailed  because  it  was  deemed  to  express  the  actual  in- 
tent of  the  grantor.^'  Where  a  fee  tail  was  created  according 
to  the  premises,  but  the  habendum  indicated  a  fee,  a  holding 
that  A  took  the  fee  has  been  supported  upon  the  ground  that 
all  parts  of  the  deed  were  equally  to  be  considered  in  deter- 
mining the  expressed  intent.'*^ 

In  Miller  v.  Mowers  ^'*  the  deed  in  question  reads  as  follows : 
The  grantor  granted  unto  the  party  of  the  second  part  "her 
heirs  and  assigns"  certain  described  real  estate  "to  have  and 
to  hold  the  said  premises  above  bargained  and  described  with 
the  appurtenances,  unto  the  said  party  of  the  second  part,  her 
heirs  and  assigns  during  her  natural  lifetime."  The  words 
italicized  were  written  in  longhand  and  the  other  words  were 
part  of  the  printed  form.  There  was  not  here  a  mere  repug- 
nance between  the  premises  and  the  habendum,  but  the  premises 
and  the  first  half  of  the  habendum  both  were  equally  appro- 
priate for  the  creating  of  a  fee  simple  estate  and  the  words 
suggesting  the  limitation  of  a  life  estate  were  really  part  of 
the  habendum  and  inconsistent  with  the  beginning  of  the  haben- 
dum itself.  The  holding  of  the  court  then  that  the  grantee 
took  only  a  life  estate  was  a  particularly  striking  failure  to 
apply  in  all  its  original  rigidity  the  rule  of  construction.  The 
action  of  the  court  was  rested  wholly  upon  the  fact  that  the  sur- 
rounding circumstances  and  inferences  from  the  face  of  the 
deed  showed  that  the  creation  of  a  life  estate  was  expressly 

45  Smith  V.  Smith,  71  Mich.  633;  Ky.    379;    Higgins    v.    Wasgatt,    34 

Winter  v.  Gorsuch,  51  Md.  180.  Me.   305. 

■»«  Tyler  v.  Moore,  42  Pa.  St.  374.  48  Tennison  v.  Walker,  190  S.  W. 

47  Berridge  i;.  Glassey,  112  Pa.  St.  9    (Mo.   191G),   16   Law   Series  Mis- 

442;    Moss   v.    Sheldon,   3   W.   &   S.  souri  Bulletin   31. 
(Pa.)    160;    Henderson  v.  Mack,  82  49  227  111.392. 

180 


ClJ.IXJ  PEE  SIMPLE  [§182 

intended.  Tlie  court  laid  special  stress  upon  tlie  fact  that  tlie 
words  of  the  habendutn  "during'  her  natural  lifetime"  were 
written  into  the  printed  form,  and  applied  the  nde  that,  wiiere 
there  is  a  eontiict  between  the  written  and  i)rinted  portions, 
the  written  must  prevail."'"  This  last  was  not  so  strong  because 
before  the  word  "heirs"  in  llic  i)r(Muises  and  hahenduin  the 
word  "her"  was  written  in  full,  sho\vin<^  that  the  word  heirs 
had  been  read  and  noted,  and  this  was  fortified  also  by  tlie 
fact  that  the  word  "forever"  after  "heirs  and  assigns"  in  the 
hahendum  was  crossed  out.  The  decision  of  the  court  would 
seem  then  to  come  very  near  holding  that  the  rule  relating  to 
a  conflict  between  the  premises  and  the  habfudtim  gives  way 
readily  to  what  the  court  on  all  the  evidence  deems  the  ti-ue 
expressed  intent. 

In  Doney  v.  Clipson  ^^  the  deed  ran  to  A  and  the  heirs  of 
his  body,  to  have  and  to  hold  to  A  for  life  and  then  to  the 
heirs  of  his  body.  The  only  question  was  whether  A  had  a 
life  estate  or  a  fee.  It  was  clear  that  he  did  not  have  a  fee. 
He  had  a  life  estate  whether  the  granting  clause  or  the  haben- 
dum prevailed. 

§182.  (2)  Where  devises  are  involved:  AVherc  incon- 
sistent expressions  creating  different  estates  occur  in  a  will, 
there  never  has  been  any  rigid  rule  that  what  might  correspond 
to  the  habendum  of  a  deed  should  not  be  permitted  to  cut  down 
or  abridge  an  estate  devised  by  language  which  might  corre- 
spond to  the  premises  of  a  deed.  Not  only  was  there  no  mention 
of  such  a  rule  relating  to  the  construction  of  devises  in  Jarman 
on  AVills  or  Theobald  on  Wills,  but  at  least  one  English  judge 
has  particularly  noted  the  fact  that,  in  a  deed,  of  two  repug- 
nant provisions  the  first  prevails,  wiiilc  in  a  will  the  rule  is  that 
the  last  will  be  taken.^-'  Furthermore,  the  older  and  more  arti- 
ficial rules  regarding  the  eft'ect  of  language  in  a  conveyance 
inter  r/ro.s-  have  never  been  operative  where  the  transfer  was 

50  American  Express  Co.  v.  Pinck-  =2  Doe  v.  Biggs,  2  Taunt.  109, 
ney,  29  111.  392;  People  v.  Dulaney,  per  Sir  James  Mansfield,  C.  J,  See 
96  111.  503;  Loveless  v.  Thomas,  also  Hamlin  r.  United  States  Ex- 
152  111.  479;  McNear  i;.  MeComber,  press  Co.,  107  111.  443;  Jenks  r. 
18  la.  12;  Reed  v.  Hatch,  55  N.  H.  Jackson,  127  111.  341,  350;  Harris  v. 
327.  Ferguy,  207  111.  534,  539. 

51  285  111.  75. 

181 


§182]  EST-ATES  [Ch.  1;^ 

by  devise.^2  tj^^  prinoiple  ahvays  applied  has  been  that  the 
expressed  intent  as  it  appears  from  the  whole  instrument  must 
prevail.  To  this  has  been  added  the  rule  that  in  case  of  irre- 
concilable conflict,  the  later  expressions  in  the  will  are  preferred 
to  the  earlier  as  indicating  the  intention  expressed.^^  Thus  in 
Siegwald  v.  Siegwald,^^  the  testator  de\ased  to  his  wife  all  his 
real  and  personal  estate  "in  fee  simple  absolutely  forever,  that 
is  to  say, — that  my  said  wife  shall  have  all  of  the  benefits  there- 
of until  the  expiration  of  her  life,"  at  which  time  the  testator's 
son  should  be  the  only  heir  of  what  might  be  left.  It  was  held 
that  the  wife  took  a  life  estate  only.  So  in  Wallace  v.  Bozarth  ^^ 
the  testator  devised  all  the  residue  of  his  property  "absolutely 
and  in  fee  simple  to  my  wife,  Samantha  Poole,  for  life,  after 
her  death  to  be  equally  divided  between  my  three  heirs.  "^"^ 
This  was  held  to  give  the  wife  only  a  life  estate.  Since  Miller 
V.  Mowers, ^»  these  results  should  be  regarded  as  in  line  with 
the  court's  usual  course  of  decision  on  contexts  presenting 
similar  conflicts. 

Two  cases,  however,  appear  in  the  reports  which  seem  to  be 
out  of  line  and  to  require  special  notice. 

In  Lamhe  v.  Drayton  ^^  a  will  was  presented  to  the  court  for 
construction  which  contained  a  devise  to  the  testator's  wife  and 
"her  heirs  and  assigns  *  *  *  To  have  and  to  hold  *  *  *  to  my 
said  wife  *  *  *  (during)  her  lifetime."  It  was  held  that  the 
wife  took  by  this  an  estate  in  fee  and  the  court  seemed  to  go 
not  upon  what  it  deemed  the  expressed  intent  of  the  testator, 
but  upon  the  hard  and  fast  rule  of  construction  relating  to  the 
effect  of  the  habendum  of  a  deed  when  it  conflicts  with  the 
premises  and  purports  to  give  a  less  estate.  Such  a  rule  never 
did  prevail  in  regard  to  wills,  and,  since  Miller  v.  Mowers,^^ 
it  must  be  doubtful  whether  it  still  applies  in  this  state  as  to 
deeds. 

53  Co.  Lit.  9b,  10a.  ^^  37  111.  431. 

54  Hamlin    v.    United    States    Ex-  ^<^  22.3  111.  339. 

press    Co.,    107    111.    443;    Jenks   v.  57  Siddons    v.    Cockrell,    131    111. 

Jackson,   127   111.   341,   350;    Harris  653. 

V.  Ferguy,  207  111.  534,  539;   Mur-  58  227  111.  392;  ante,  §181. 

fitt  V.  Jessop,  94  lU.  158 ;  Rountree  '9  182  lU.  110. 

V.   Talbot,   89   111.   246,  249.      Com-  60  227  111.  392;  ante,  §181. 

pare,    however,    Little    v.    Bowman, 

276  111.   125. 

182 


Ch.  IX]  FEE   SIMPLE  [§  183 

In  Rissman  v.  Wierth^^  "all  the  rest,  residue  and  remainder 
of  my  estate  both  real  and  personal"  was  devised  to  the  tes- 
tator's "beloved  wife,"  Sibilia  "to  hold  and  to  have"  "to  her, 
my  said  wife,  and  to  her  heirs  and  assies  forever."     Other 
clauses  of  the  will  appear  in  the  report  marked  2nd,  3rd  and  4th. 
If  we  stop  witli  the  words  "heirs  and  assign.s  forever"  Sibilia 
clearly  took  the  fee.    The  premises  carried  the  fee  and  the  habeyi- 
dum  confirmed  it.     If,  however,  we  stop  at  the  end  of  the  clause 
marked  2nd,  or  the  clause  marked  3d,  then  Sibilia  took  a  fee 
subject  to  an  executory  devise  over  on  her  marriage,   which, 
however,  never  occurred  and,  therefore,   this  gift  over  never 
took  effect.     When,  however,  we  add  the  4th  clause  we  find  a 
gift  if  Sibilia  does  not  marry,  to  her  "until  her  death  and  after 
her  death  the  residue  shall  be  devided"  to  named  persons.    This 
clause  makes  the  case  not  only  one  where  the  last  expressed 
intent  is  that  the  wife  shall  have  a  life  estate,  but  also  one  where 
there  is  a  gift  over  on  two  contingencies  which  exhaust  all  the 
possibilities,—/,  c,  Sibilia  marrying  or  not  marrying,— so  that 
under  the  rule  already  discussed  « 2  Sibilia  would  have  had  only 
a  life  estate.    The  court,  however,  reached  the  result  that  Sibilia 
had  an  indefeasible  estate  in  fee  simple.     This  defeats  and  dis- 
regards a  clearly  expressed  gift  over.    The  discussion  of  the  Rule 
in  Shelley's  Case  by  the  court  is,  it  is  submitted,  without  justi- 
fication.    The  handling  of  the  language  of  the  will  in  question 
represents  a  course  which  cannot  be  relied  upon  to  be  repeated. 

TITLE  V. 
ESTATE  WHICH  A  TRUSTEE  TAKES. 

§  183.  Introductory:  In  many  cases  where  courts  venture 
an  opinion  as  to  the  estate  which  the  trustee  takes,  the  point 
Avill  be  found  on  analysis  not  to  be  material.'""^  :\Iuch  dicta  may 
thus  be  discarded. 

A  few  of  the  instances  where  the  estate  which  the  trustee  takes 
becomes  of  vital  importance  are  as  follows:  If  the  trustee  takes 
the  fee  in  trust  for  A  for  life  and  then  in  trust  for  A's  heirs, 
so  that  all  tne  beneficial  interests  are  equitable,  the  Rule  in 

61  220  111.  181.  "^  See  Ebey  v.  Adams,  135  III.  80, 

62  Ante,  §§  165,  167.  85. 

183 


§183]  ESTATES  [Ch.  IX 

Shelley's  Case  applies.^-*  If,  however,  the  trustee  takes  only  an 
estate  for  the  life  of  the  equitable  life  tenant,  and  the  remainder 
to  the  equitable  life  tenant's  heirs  is  legal,  the  Rule  in  Shelley's 
Case  does  not  apply.*^^  It  makes  a  difference  on  the  question  of 
the  survival  of  powers  whether  the  trustee  takes  a  fee  with  a 
trustee's  power  to  dispose  of  the  fee  or  only  a  limited  estate/'*^ 
If  the  trustee  has  a  fee  and  has  been  disseised  for  twenty  years, 
it  may  be  that  all  the  cestuis  will  be  barred,  while  if  the  trustee 
has  only  a  legal  estate  for  years  or  for  the  life  of  an  equitable 
life  tenant  and  the  remainder  is  legal,  then  the  Statute  of  Limi- 
tations cannot  begin  to  run  against  the  remainderman  until  the 
termination  of  the  preceding  limited  estate  and  probably  not 
until  the  actual  time  fixed  for  the  termination  of  the  preceding 
limited  estate,  such  as  the  end  of  the  term  for  years  or  the  death 
of  the  tenant. for  life.*^^  If  an  equitable  interest  in  real  estate 
cannot  be  taken  on  execution  under  the  statutes  of  this  state,*^^ 
then  it  becomes  important  when  judgment  is  had  against  the 
holder  of  a  future  interest  to  determine  whether  the  trustee  has 
a  fee  so  that  the  future  interest  is  equitable,  or  whether  the 
trustee  lias  only  a  limited  estate,  so  that  the  future  interest  is 
legal.'^»  If  the  trustee  takes  the  fee  then  there  will  be  less  neces- 
sity for  the  beneficiary  being  made  a  party  to  a  suit  to  construe 
the  terms  of  the  trust  instrument  than  if  the  beneficiary  has 
a  legal  future  interest.'^'^  When  the  beneficiary  ultimately  en- 
titled brings  ejectment  after  the  period  of  the  active  trusts  has 
terminated,  he  fails  if  the  trustee  took  a  fee.  He  succeeds  where 
the  trustee  has  only  a  limited  estate  which  has  come  to  an  end.'^ 
In  determining  Avhether  the  trustee  has  the  right  to  file  a  bill 
to  construe  a  will  and  determine  the  beneficial  interests  it  may 
become  important  to  determine  whether  the  trustee  takes  any 
estate  at  all  or  has  merely  a  naked  power  J  ^ 

In  determining  what  estate  the  trustee  has,  it  will  be  found 

B4  Post,  §  429;  Nowlan  v.  Nowlan,  296;  Wallace  v.  Monroe,  22  111.  App. 

272  111.  526.  602;   post,  §728. 

r>5Post,  §413;  Harvey  v.  Ballard,  ■        «!' Moll  v.  Gardner,  214  111.  48. 

252  111,  57.           .         ■  '70  Green  v..  Grant,  143  111.  61,  73; 

oaPost,.  §626;    "Watson    v.    Pear-  Smith  v.  Hunter,  241  111.  514. 

son,  2  Exch.  ,581.  7i  Walton   v.   Follansbee,   131    111. 

<5T  See  Watkins  v.  Spccht,  7  Coldw.  147 ;    id.,  165  111.  480. 

(Tenn.y,  585;   post,   §§  383  e<  seq.  72  Emmerson   v.    Merritt,    249    111. 

68  See  Potter  v.  Couch,  141  U.  S.  538. 

184 


Cii.IXl 


FEE   SIMPLE 


§184 


important  to  observe  a  i)ossible  distinction  between  tlie  case 
Avliere  the  trust  is  created  by  deed  inter  vivos  and  where  it  is 
created  by  uill. 

§  184.  Testamentary  trusts — Cases  where  there  are  no  ex- 
plicit words  of  devise  to  the  trustee:  If  tiiere  are  no  words 
at  all  of  devise  to  tlie  executor  or  trnstee  and  no  direction  that 
the  executor  or  trnstee  shall  manage  and  control  the  estate  from 
which  words  of  direct  devise  may  be  inferred,  as  hereinafter 
noted,  then  the  fact  that  a  power  is  conferred  to  sell  and  dis- 
pose of  the  fee  '•'  or  to  divide  the  estate  among  tlie  beneficiaries  "•* 
will  not  cause  any  estate  to  vest  in  the  executor  or  trustee.  The 
power  is  a  real  or  naked  power  and  may  be  exercised  as  such."' 

Suppose  that  while  there  are  no  explicit  words  of  devise  to 
an  executor  or  trustee,  there  are  words  of  direction  that  the 
executor  or  trustee  take  possession  of  the  real  estate  and  hold  or 
manage  it  and  collect  the  rents.  Such  expressions  indicate  that 
the  executor  or  trustee  is  to  take  some  legal  estate."^  To  a  cer- 
tain extent  the  rules  '"^  applicable  where  there  are  explicit  words 
of  devise  to  the  trustee  will  control.     For  instance,  the  trustee 


"Baker  v.  Scott,  62  111.  86,  103; 
Lambert  v.  Harvey,  100  111.  338; 
West  V.  Fitz,  109  111.  425,  435, 
semhle;  Ebey  v.  Adams,  135  111.  80, 
semble;  Smith  r.  Hunter,  241  111. 
514;  Emmerson  v.  Merritt,  249  111. 
538;  Hill  v.  Dade,  68  Ark.  409. 

T4  See  Drake  v.  Steele,  242  111. 
301,  semble. 

75  See  notes  73  and  74,  supra.  Of 
course,  a  trust  may  be  created  with- 
out any  designation  of  a  trustee, 
in  which  case  the  legal  title  passes 
to  the  heir  at  law.  Kolb  v.  Landes, 
277  111.  440.  "^ 

"Wicker  v.  Kay,  118  111.  472; 
Hale  V.  Hale,  146  111.  227;  Olcott 
V.  Tope,  213  111.  124;  Kemmerer  v. 
Kemmerer,  233  111.  327  (as  ex- 
plained in  Emmerson  i;.  Merritt,  249 
111.  538,  541,  542);  Fenton  v.  Hall, 
235  111.  552  (as  explained  in  Em- 
merson V.  Merritt,  249  111.  538,  541, 
542). 


It  is  in  this  connection  that  it 
is  proper  to  say  that  a  power  to 
lease  which  the  trustee  has  by  neces- 
sary implication  from  his  power  to 
manage  and  control  indicates  that 
the  trustee  is  to  have  some  legal 
estate.  Such  a  power  to  lease  is  a 
power  to  make  leases  to  last  only 
during  the  term  of  the  active  trusts 
(post,  §  192).  But  since  it  is  in- 
ferred that  the  leaseholds  created 
are  to  come  out  of  the  estate  of  the 
trustee  it  is  a  necessary  conclusion 
that  the  trustee  is  to  take  some 
estate.  Hale  v.  Hale,  146  111.  227, 
248-249.  This  correct  reasoning 
should  not  be  confounded  with  the 
proposition  that  the  trustee  takes  a 
fee  when  he  has  an  express  power 
to  make  leases  which  will  continue 
beyond  the  period  of  the  a'tive 
trusts. 

"  Post,  §  185. 


185 


§  185]  ESTATES  [Ch.  IX 

will  take  only  such  legal  estate  as  will  satisfy  the  purposes  of 
the  trust.  If  his  active  duties  are  to  continue  only  during  a 
term  for  years  it  may  be  assumed  that  he  will  take  such  a  term. 
If  his  active  duties  are  to  continue  during  the  life  of  an  equitable 
tenant  for  life  it  may  be  assumed  that  he  will  take  at  least  a 
legal  estate  for  the  life  of  such  equitable  life  tenant."^  Can  it 
be  said,  however,  that  the  words  which  direct  the  trustee  or 
executor  to  hold,  manage,  control  and  rent  are  the  precise  equiva- 
lent of  direct  words  of  devise  to  the  executor  or  trustee?  It  is 
believed  that  the  matter  is  a  delicate  one  of  construction  about 
which  it  is  dangerous  for  courts,  as  well  as  the  writer,  to  dog- 
matize. It  may  be  that  the  language  directing  the  trustee  to 
control  and  manage  would  be  clearly  equivalent  to  words  of 
devise  to  the  trustee  and  if  a  power  of  sale  "^^  or  a  direction  to 
divide  at  the  termination  of  the  trusts  ^'^  or  both^^  were  added, 
the  trustee  would  take  the  fee  according  to  the  rules  hereinafter 
set  out.^-  On  the  other  hand,  it  might  be  that  the  absence  of 
direct  words  of  devise,  together  with  other  language  used,  would 
show  an  express  design  to  limit  the  trustee 's  legal  estate  as  much 
as  possible  and  the  power  to  sell  the  fee  might  properly  be  taken 
as  a  real  power  and  as  not  at  all  effective  to  confer  a  fee  upon 
the  trustee. 

§  185.  Cases  where  there  are  explicit  words  of  devise  to  the 
trustee— Efifect  of  R.  S.  1874,  Ch.  30,  Sec.  13:  s^  Under  this 
act  a  conveyance  or  devise  to  a  trustee  without  words  of  limi- 
tation is  put  upon  the  same  footing  as  if  words  of  limitation  were 
in  fact  used.®^  The  last  phrase  of  the  act,  **if  a  less  estate 
*  *  *  do  not  appear  to  have  been  granted,  conveyed  or  de- 
vised by  construction  or  operation  of  law,"  would  seem  to  pre- 
serve all  the  rules  as  developed  at  common  law  for  determining 
the  estate  which  the  trustee  takes.  Such  rules  were  clearly 
rules  of  construction  for  determining  the  estate  conferred.  Such 
is  the  view  actually  assumed  by  the  Supreme  Court  in  this 
state.^'     In  other  states,  also,  under  similar  acts,  the  assump- 

78  Hutcheson  v.  Hodnett,  115  Ga.  si  Oleott  v.  Tope,  213  111.  124. 
990.  f*- Post,  §§  185  et  seq.     See  Nixon 

79  Fenton    v.    Hall,    235    111.    552       v.  Nixon,  268  111.  524,  535. 

(as  explained   in  Emmerson   ?^  Mer-  »3  This   is   substantially   the   same 

ritt,  249  111.  538,  .541,  542).  as  R.  S.  1845,  p.  105,  see.  13. 

s-i  Wicker   v.    Ray,    118    111.    472;  s^  West  v.  Fitz,  109  111.  425,  436. 

Hale  V.  Hale,  146  111.  227.  '*•'''  See  common  law  rules  followed 

186 


Ch.  IX 


FEE   SIMPLE 


§187 


tion  has  been  the  same  and  recourse  is  regularly  had  to  the 
iOnglish  eases  prior  to  the  Wills  Act  for  the  rule  which  deter- 
mines what  estate  a  trustee  takes.*^" 

§  186.  Where  real  estate  is  devised  to  trustees  and  an  estate 
in  the  trustee  for  the  life  of  the  beneficiary  is  expressly  indi- 
cated: If  in  addition,  the  property  at  the  end  of  the  period 
of  the  active  duties  of  the  trustee  is  to  "descend  and  be  divided 
among"  the  children,  and  there  is  no  power  to  sell  the  fee  out 
of  the  trust  estate,  the  trustee  will  probably  take  an  estate  only 
for  the  pei-jod  specified.^" 

?;  187.  Where  real  estate  is  devised  to  trustees,  although 
with  words  of  inheritance,  or  where  such  words  are  supplied 
in  effect  by  R.  S.  1874,  Ch.  30,  Sec.  13,  prima  facie  the  trustees 
take  only  so  much  of  the  legal  estate  as  the  purposes  of  the 
trust  require:  Such  is  the  rule  stated  by  Hawkins*^  in  sum- 
marizing the  effect  of  the  English  cases  prior  to  the  Wills  Act.^^ 
The  results  actually  reached  in  many  jurisdictions  in  this  coun- 
try 8"  and  in  this  state  ^^  are  consistent  with  this  rule.  Thus, 
where  there  is  a  devise  of  lands  to  trustees  and  their  heirs 


by  tlic  Illinois  t'ascs,  post,  §§  187 
ct   scq. 

8«  Sec  cases  cited  from  other 
states,  post,  §§187  ct  seq. 

«•  Hull  V.   Ensinger,   257   111.   IGU. 

88  Wills,  p.   143. 

89  Cooke  V.  Blake,  1  Exoh.  220; 
Shapland  v.  Smith,  1  Brown,  C.  C. 
7.5;  Silvester  v.  Wilson,  2  T.  R.  444; 
Baker  v.  Parson,  42  L.  J.  Ch.  N.  S. 
228;  Ex  parte  Wyneh,  5  De  G.  M. 
&  G.  188. 

90  Brantley  r.  Porter,  111  Ga. 
886;  Brown  i-.  Wadsworth,  168  N. 
Y.  225;  Vogt  v.  Vogt,  26  App.  (D. 
C.)  46;  2uver  v.  Lyons,  40  la.  510; 
Ware  r.  Richardson,  3  Md.  505, 
546-554;  Hardy  r.  McKim,  64  Md 
560;  Thurston  ;■.  Thurston,  6  R.  I 
296;  Payne  v.  Sale,  22  N.  C.  4.15 
Shackelford  v.  Bullock,  34  Ala.  418 
Griffith  V.  Plummer,  32  Md.  74, 
Shreve  v.  Shreve,  43  Md.  382;  Mer 
cer  V.  Safe  Dep.  Co.,  91   Md.   102; 


Vanderheyden  v.  Crandall,  2  Denio 
9,  1  N.  Y.  491;  Eshbach 's  Estate, 
197  Pa.  St.  1.53;  Xandcr  v.  Easton 
Trust  Co.,  217  Pa.  St.  485; 
Kountzleman 's  Estate,  21  W.  N.  C, 
Pa.,  467 ;  Turner  v.  Ivie,  5  Heisk. 
(Tenn.)  222;  Hemphill's  Estate,  5 
Pa.  Dist.  690;  Little  v.  Wilcox,  119 
Pa.  St.  439,  449;  Estate  of  Man- 
nerback,  133  Pa,  St.  342;  Be 
Tompkins,  154  N.  Y.  634. 

91  West  V.  Fitz,  109  111.  425,  436, 
437;  Walton  v.  Follansbee,  131  111. 
147;  Id.,  165  111.  480;  Ure  v.  Ure, 
185  III.  216;  Moll  v.  Gardner,  214 
111.  248;  Emmerson  v.  Merritt,  249 
111.  538;  Monast  v.  Letourneau,  87 
111.  App.  300;  Harvey  v.  Ballard, 
252  111.  57;  Nowlan  v.  Nowlan,  272 
111.  526;  Nixon  v.  Nixon,  268  111. 
524,  536;  Reichert  i'.  Mo.  &  111. 
Coal  Co.,  231  111.  238;  Defrees  v. 
Brydon,  275  111.  530,  544. 


187 


187 


ESTATES 


[Ch.  IX 


"upon  trust  to  collect  the  rents,  issues  and  profits  and  to  pay 
the  same  to  A  for  his  life  and  then  I  devise  the  same  to  B  and  his 
heirs,"  there  can  be  no  doubt  that  the  trustee  would  take  an 
estate  only  for  the  life  of  A  and  that  B  would  have  a  legal  re- 
mainder in  fee.^2  xhis  is  considered  the  clear  case,  because  not 
only  are  the  purposes  of  the  trust  satisfied  with  an  estate  in  the 
trustee  for  the  life  of  A,  but  the  remainder  to  B  is  limited  by 
independent  words  of  devise.  The  same  result  is  reached  if  after 
the  words  "to  A  for  life"  the  will  reads:  "then  to  pass  to  and 
become  the  absolute  property  of  B  and  his  heirs,"  ^^  or  "inure 
and  vest  in  B  and  his  heirs,"  »"  or  "to  vest  in,"  ^^  or  "descend 
and  vest  in,"  ^^  or  "descend  to,"  ^^  or  "go  and  be  held  by  B  and 
his  heirs,"  ^^  or  then  "to  revert  to  B  and  his  heirs,"  ^^  or  then 
"to  be  paid  to  B  and  his  heirs,"  ^  or  then  "to  B  and  his  heirs,"  2 
or  then  "upon  trust  for  B  and  his  heirs,"  ^  or  "for  the  use  of 
B  and  his  heirs. "  *  In  some  cases  the  estate  of  the  trustee  has 
been  confined  to  a  term  for  years.^ 

It  wall  be  observed  that  in  the  rule  as  stated  by  Hawkins  the 
estate  which  the  trustee  prima  facie  takes  depends  upon  the  re- 


92  Cooke  V.  Blake,  1  Exch.  220; 
Silvester  v.  Wilson,  2  T.  K.  444; 
Baker  v.  Parson,  42  L.  J.  Ch.  N.  S. 
228. 

93  Brantley  v.  Porter,  111  Ga.  886; 
Estate  of  Mannerback,  133  Pa.  St. 
342;  Standard  Paint  Co.  v.  Prince 
Mfg.  Co.,  133  Pa.  St.  474;  Walton 
V.  Follansbee,  131  111.  147;  Id.,  165 
111.  480. 

9*  Zuver  V.  Lyons,  40  la.  510. 

95  In  re  McCaffrey 's  Estate,  50 
Hun.  (N.  Y.)  371. 

96  Walton  V.  Follansbee,  131  111. 
147;  Id.,  165  111.  480. 

97  Harvey  v.  Ballard,  252  111.  57. 

98  Little  V.  Wilcox,  119  Pa.  St. 
439,  449. 

99Ure  v.  Ure,  185  111.  216.  See 
also  Walton  v.  Follansbee,  131  111. 
147 ;  Id.,  165  111.  480. 

iVogt  V.  Vogt,  26  App.  (D.  C.) 
46. 

2  Hardy  v.  McKim,   64   Md.   560; 


Thurston  v.  Thurston,  6  R.  I.  296; 
Payne  v.  Sabe,  22  N.  C.  455;  Hemp- 
hill's Estate,  5  Pa.  Dist.  690. 

3  Brown  v.  Wadsworth,  168  N.  Y. 
225. 

4  Shapland  v.  Smith,  1  Brown,  C. 
C.  75;  Ware  v.  Richardson,  3  Md. 
505,  546,  554. 

5  See  Moll  v.  Gardner,  214  111. 
248 ;  Bush  v.  Hamill,  273  111.  132. 

The  English  cases  prior  to  the 
Wills  Act  regularly  held  that  where 
there  were  words  of  devise  to  a  trus 
tee  upon  trust  to  pay  debts  or  make 
certain  specified  payments  out  of  the 
rents  and  a  gift  over  when  that  was 
done,  the  trustee  took  only  a  chat- 
tel interest  or  term  for  years  till 
the  debts  or  payments  were  made. 
Cordal's  Case,  Cro.  Eliz.  316;  Doe 
V.  Simpson,  5  East.  162;  Ackland 
V.  Lutley,  9  A.  &  E.,  879;  Heard- 
son  V.  Williamson,  1  Keen's  Ch.  33. 


188 


Ch.  IX]  FEE   SIMPLE  [§  187 

quirements  or  purposes  of  the  trust.  Our  Supreme  Court  has, 
however,  several  times  declared  that  the  mere  words  of  devise 
to  the  trustee  prima  facie  gives  the  trustee  a  fee.'^  It  is  believed 
that  there  is  no  inconsistency  in  these  two  statements.  The  court 
seems  only  to  mean  that  if  you  stop  with  the  words  of  devise 
to  the  trustee,  prima  facie  the  trustee  takes  the  fee,  but  if  upon 
reading  on  you  find  that  the  purposes  of  the  trust  will  be  satisfied 
with  a  less  estate,  the  prima  facie  inference  is  rebutted  and  the 
trustee  takes  a  less  estate.  In  short,  the  inference  from  the 
purposes  of  the  trust  and  the  active  duties  of  the  trustee  is  a 
test  of  the  trustee's  estate  superior  to  words  of  devise  and  in- 
heritance. Thus,  in  West  v.  Fitz  ^  the  court,  after  declaring  that 
prima  facie  the  devise  to  the  trustee  gives  him  the  fee,  goes  on  to 
declare  what  it  means  by  "prima  facie":  "But  the  giving  of  a 
trustee  the  application  of  the  rents  does  not  necessarily  confer  on 
him  the  fee.  The  quantity  of  the  estate  in  each  case  will  depend 
upon  the  exigencies  of  the  trust  and  the  terms  of  the  limitation. 
If  required  to  collect  and  pay  the  rents  for  a  definite  period  of 
time,  or  during  the  life  of  an  individual,  he  will  take  an  estate  for 
years,  or  life,  as  the  case  may  be."  In  short,  after  declaring  that 
the  trustee  prima  facie  takes  the  fee,  the  court  then  concedes  the 
nsual  rule  that  the  trustee  will  take  a  less  estate  even  where 
words  of  inheritance  are  used,  if  a  less  estate  will  satisfy  the  pur- 
poses of  the  trust.^  The  purposes  of  the  trust  are,  therefore, 
after  all,  the  predominating  source  for  the  determination  of  the 
estate  which  the  trustee  takes.  Whether,  then,  you  say,  as  our 
Supreme  Court  has  done,  that  prima  facie  the  trustee  takes  the 
fee,  but  that  this  prima  facie  fee  will  be  cut  down  if  the  purposes 
of  the  trust  are  satisfied  with  a  less  estate,  or  ^^■hether  you  take 
Hawkins'  statement  that  prima  facie  the  trustee  takes  so  much 
of  the  legal  estate  as  the  purposes  of  the  trust  require,  the  rule 
is,  in  effect,  the  same. 

Section  30  of  the  Wills  Act  ^  provided  that  a  devise  to  a 
trustee  or  executor  "shall  be  construed  to  pass  the  fee  simple" 
unless  a  term  for  years  or  an  estate  of  freehold  "shall  thereby 
be  given  to  him  expressly  or  by  implication."    In  Baker  v.  Par- 

6  West    v.  Fitz,  109  111.  425,  4.$6,  »  To   tlio   same   effect   see   Harvey 

437;  Green  v.  Grant,  143  111.  61,  70;  v.  Ballard,  252  111.  57,  62. 

Harvey  r.  Ballard,  252  111.  57,  62.  a  1  Vict.  Ch.  26. 

T  109  111.  425,  437. 

189 


§188]  ESTATES  [Ch.IX 

son  ^'^  this  act  -was  apparently  taken  as  making  no  change  in 
the  law.  In  effect  the  prima  facie  fee  which  the  trustee  would 
take  under  the  statute  was  "cut  down  by  implication"  where 
the  purposes  of  the  trust  would  be  satisfied  with  a  less  estate. 
The  same  will  involved  in  Baker  v.  Parson  afterwards  came  be- 
fore Jessel,  M.  R.^^  He  declined  to  follow  the  prior  decision 
and  held  in  substance  that  it  took  something  more  than  the  fact 
that  the  purposes  of  the  trust  could  be  satisfied  with  an  estate 
less  than  the  fee  to  cut  down  the  prima  facie  fee  of  the  trustee 
which  he  took  by  reason  of  the  Wills  Act. 

To  avoid  confusion  it  is  important  to  observe  that  when  our 
Supreme  Court  says  that  the  trustee  prima  facie  takes  the  fee  it 
means  that  the  fact  that  the  purposes  of  the  trust  will  be  satisfied 
with  a  less  estate  is  still  sufficient  to  overcome  this  prima  facie 
inference.  When  Jessel,  after  the  Wills  Act,  says  the  trustee 
prima  facie  has  the  fee,  he  means  that  the  fact  that  the  purposes 
of  the  trust  may  be  satisfied  with  a  less  estate  is  not  alone  suffi- 
cient to  overcome  the  prima  facie  inference.  If  our  Supreme 
Court  should  some  time  overlook  this,  it  might,  while  apparently 
following  the  language  of  West  v.  Fitz,^-  in  fact  be  overruling  a 
line  of  decisions  which  have  come  to  be  relied  upon. 

§  188.  A  fortiori,  where  no  words  of  inheritance  are  used 
and  no  statute  like  R.  S.  1874,  Ch.  30,  Sec.  13,  exists,  the  trustee 
takes  only  such  estate  as  the  purposes  of  the  trust  require: 
This  proposition  follows  so  clearly  from  the  rule  stated  in  the 
previous  section  that  it  needs  no  comment  or  support  from  the 
cases. 

§  189.  Where  there  are  words  of  devise  to  the  trustee  and 
the  trustee  is  given  power  to  sell  and  convey  the  fee  and  is 
directed  to  wind  up  the  trusts  by  making  an  actual  division 
among-  the  beneficiaries  and  conveyances  to  them:  Under 
these  circumstances  the  trustee  will  take  the  fee.^''     It  is  some- 

10  42  L.  J.  Ch.  N.  S.  228.  218;    Simpson   v.    Erisner,    1.55    Mo. 

11  Baker  v.  White,  20  Eq.  166.  1.57.     But  see  Bush   v.   Hamill,  273 

12  109  111.  42.5.  111.   132. 

13  Kirkland  v.  Cox,  94  111.  400;  Bacon's  Appeal,  -57  Pa.  504,  is 
Green  v.  Grant,  143  111.  61,  71;  01-  not  contra,  because  in  Pennsylvania 
cott  V.  Tope,  213  111.  124  (see  ante,  the  direction  to  the  trustee  to  coii- 
sec.  2)  ;  Burbach  t;.  Burbach,  217  vcy  to  the  ultimate  beneficiary  seems 
111.  547;  Lord  v.  Comstock,  240  111.  generally  not  to  impose  any  active 
492;   Bergman  v.   Arnhold,  242   111.  duty  upon  the  trustee. 

190 


Ch.  IX]  FEE   SIMPLE 


[§190 


times  rather  glibly  said  that  both  the  power  of  sale  and  the 
direction  to  convey  require  the  trustee  to  take  the  fee.    But  this 
is  not  quite  so,  for  both  the  transfer  of  the  fee  upon  a  sale  and 
upon  a  distribution  may  in  fact  be  made  by  the  trustee  pursuant 
to  a  real  power,  the  trustee  taking  no  estate  at  all  or  only  a  lim- 
ited estate.'*     The  fact  is,  the  power  of  sale  and  the  direction 
to  convey  only  require  the  trustee  to  take  the  fee  when  the 
fee  simple  estate  to  be  transferred  upon  a  sale  or  upon  a  distri- 
bution is  expressly  declared  to  come  out  of  the  estate  which  the 
trustee  himself  has.    In  short,  there  is  theoretically  a  difference 
between  a  devise  to  a  trustee  upon  trust  to  sell  and  convey  the 
fee  de^ised  to  him  and  a  devise  to  a  trustee  upon  certain  trusts 
which  would  be  satisfied  by  a  limited  estate  in  the  trustee  and 
an  added  power  in  the  trustee  to  seU  the  fee  and  to  distribute 
and  convey  to  the  ultimate  beneficiaries.     Practically,  however, 
this  distinction  does  not  exist  because  there  is  in  all  eases  of 
an  actual  devise  to  the  trustee  a  real  as  well  as  a  artificial  infer- 
ence that  the  trustee  is  to  convey  or  to  distribute  out  of  an 
estate  which  is  vested  in  him.    It  is  the  addition  of  this  real  and 
artificial  inference  that  enables  the  prediction  to  be  confidently 
made  that  where  there  are  words  of  devise  to  the  trustee,  together 
with  a  power  to  sell  and  convey  the  fee  and  distribute  the  estate 
by  conveyances  to  the  ultimate  beneficiaries,  the  trustee  will 
always  take  the  fee.^^ 

^  190.  Where  there  are  words  of  devise  to  the  trustee  and 
he  is  to  make  conveyajices  upon  the  termination  of  the  trusts, 
but  has  no  power  of  sale :  StiU  the  trustee  takes  the  fee  simple. 
It  is  enough  that  the  words  require  a  conveyance  by  the  trustee 

I*  Ante,   §184;   Matter  of  Tomp-  tory   rule  against  perpetuities,   and 

kins,  154  N.  Y.  634;  In  re  Opening  the  existence  of  that  rule  and  the 

of  110th  Street,  SI  N.  Y.  S.  32.  necessity  under  it  of  taking  sueh  a 

15  In  New  York,  however,  they  position  with  regard  to  the  trustee  "s 
seem  to  have  reversed  the  usual  rule  estate  in  order  to  sustain  the  bene- 
and  the  trustee's  estate  is  always  fioial  interests,  are  probably  respon- 
cut  down  and  the  powers  of  sale  sible  for  rules  which  seem  unusual 
and  distribution  are  regularly  con-  in  the  extreme  in  a  state  where  the 
strued  to  be  real  powers.  Matter  of  common  law  rules  prevaU.  The  New 
Tompkins,  154  X.  Y.  634;  In  re  York  cases  on  what  estate  the  tr»s- 
Opening  of  110th  St..  81  N.  Y.  tee  takes  are  in  reality  anomalous 
S,  32.  This  view  is  necessary  in  from  the  point  of  view  of  the  corn- 
New  York  state  in  order  to  avoid  mon  law  premises  accepted  by  most 
the  effect  of  the  New   York  statu-  courts. 

191 


§  191]  ESTATES  [Ch.  IX 

of  the  fee,  which  he  himself  has,  by  way  of  winding  up  the 
trusts,  i*^ 

§  191.  Where  there  axe  words  of  devise  to  the  trustee  and 
he  is  given  power  to  sell  but  not  directed  to  convey  to  the 
beneficiaries  at  the  termination  of  the  trusts:  If  there  be  a 
devise  to  a  trustee  upon  trust  to  pay  rents  and  profits  to  A  for 
life  and  then  the  estate  devised  is  to  go  to  B  and  his  heirs,  the 
trustee  takes  an  estate  only  for  the  life  of  A,  in  trust  for  A  for 
life,  with  a  legal  remainder  to  B  in  fee.^"^  Is  the  result  different 
where  there  is  added  a  power  in  the  trustee  to  sell  and  convey  the 
fee?  Logically  much  would  seem  to  depend  upon  whether  the 
devise  was  to  the  trustee  "upon  trust  to  sell"  so  that  the  sale 
is  expressed  to  be  made  out  of  the  trustee's  estate,  or  whether 
tiie  power  is  conferred  in  an  isolated  clause  so  as  to  cause  an 
inference  to  arise  that  a  real  power  is  being  conferred.  In  the 
former  case  the  trustee  would  take  the  fee,  but  if  only  a  real 
power  is  conferred  the  trustee  would  not.  The  actual  inference 
usually  is  that  the  fee  to  be  transferred  by  the  trustee  is  to  come 
out  of  the  estate  transferred  to  the  trustee.  This,  it  is  believed, 
is  fortified  by  a  somewhat  artificial  inference  to  the  same  ef- 

16  McFall  V.  Kirkpatrick,  236  111.  (now  untenable   in  this  state)    tliat 

281;  Leary  v.  Kerber,  255  111.  433;  the  direction  to  convey  does  not  in 

King   V.   King,   168   111.   273;    Law-  fact   impose   any   active   duty   upon 

rence    v.    Lawrence,    181    111.    248,  the    trustee,    with    the    consequence 

semhle.      See    also   VS^icker   v.   Eay,  that  the  trustee's  estate  is  limited 

118    111.    472    (as    explained,    ante,  to  the  life  of  the  equitable  tenant 

§  184) ;   Hale  v.  Hale,  146  111.  227  for  life,   or    (what  is  now  also   an 

(as   explained,   ante,   §  184) ;    Cush-  untenable  view  in  this  state,  ante, 

ing  V.  Blake,  30  N.  J.  Eq.  689;  In  re  §  69)   that  the  Statute  of  Uses  exe- 

Youman's  "Will    [1901],   1  Ch.   720;  cutes  the  use  in  the  ultimate  bene- 

Doe  V.  Edlin,  4  Ad.  &  El.  582 ;  Doe  ficiaries  upon  the  death  of  the  equit- 

V.  Field,  2  B.  &  Ad.  564;   Ames  v.  able  life  tenant  when  the  trustee's 

Ames,     15    R.     I.     12;     Henson     v.  active  duties  cease. 
Wright,  88  Tenn.  501;   Ayer  v.  Rit-  In  Lynch  v.  Swayne,  83  111.  336; 

ter,  29  S.  C.  135;  Huckabee  v.  New-  Moll  v.  Gardner,  214  111.  248;   Gary 

ton,  23  S.  G.  291.  v.  Slead,  220  111.  508,  and  Drake  v. 

The  following  cases  might  be  tak-  Steele,    242    111.    301,    it   may   have 

en  to  be  contra:  Slater  v.  Rudder-  been    held   that    directions   that   the 

forth,  25  App.  (D.  G.)  497;  Bacon's  estate  be  divided,  conveyed,  or  paid 

Appeal,  57  Pa.  504;   Eley's  Apjieai,  over  to  those  ultimately  entitled  did 

103    Pa.    St.    300,    and    other    cases  not  place  upon  the  trustee  any  active 

cited,    ante,    §  69,    note    62.      They  duty. 
proceed,    however,     on     the    ground  ^' Ante,  §187. 

192 


Cn.  IX]  FEE  SIMPLE  [iV.)2 

feet.*"  The  existence  of  the  two  inferences  is  the  foundation  for 
the  general  statement  that  where  there  is  a  direct  devise  to  the 
trustee  and»a  power  to  sell  the  fee  is  added,  the  trustee  takes  the 
fee.  In  the  dicta  of  our  Supreme  Court  this  conclusion  has  been 
approved.*'-*  Recently  Nowlan  v.  Nowlanr'^  has  so  held.  Cases 
are  to  be  found,  however,  where  the  power  of  sale  in  the  trustee 
is  treated  as  a  real  power  and  where  the  trustee  in  consequence 
took  only  a  limited  estate.-* 

§  192.  Where  there  are  words  of  devise  to  the  trustee  and 
power  to  make  leases,  but  no  power  to  sell  the  fee  and  no  direc- 
tion to  convey  to  the  beneficiaries  at  the  termination  of  the 
trusts:  If  the  power  to  lease  is  "indefinite" — that  is.  if  it  i-. 
a  power  to  lease  for  any  term,  however  long,  or  for  a  term  extend- 
ing beyond  the  period  of  the  trusteesliip,  and,  in  addition,  it  can 
be  inferred  that  the  trustee  is  to  make  such  leases  out  of  the 
estate  which  he  has  as  trustee — then  the  trustee  must  take  the  fee 
simple.22  Just  as  in  the  case  where  the  trustee  has  a  power  of 
sale  there  is  usually  an  actual  inference  that  the  trustee  is  to 
make  the  conveyance  out  of  the  estate  which  he  has,  so  where 
the  trustee  has  an  indefinite  power  of  leasing  there  is  usually 
an  actual  inference  that  the  trustee  is  to  make  the  lease  out  of 
the  estate  which  he  has.^''  Hence  he  takes  the  fee.  There  is, 
it  is  believed,  also  a  somewhat  artificial  inference  indulged  in 
that  the  trustee  is  to  lease  out  of  his  estate  so  that  even  when 
the  power  to  lease  for  any  term  is  given  in  an  isolated  clause  at 
the  end  of  a  will  and  in  language  conferring  a  mere  naked  power, 
it  may  still  be  made  the  basis  for  the  trustee  taking  the  fee.--» 
This  artificial  inference  is  not,  however,  very  firmly  established 

IS  Watson    v.    Pearson,     2     Exch.  20  272    111.    526.      See    also    Dime 

581.  Savings  Co.  v.  Watson,  254  111.  419. 

iflKirkland  v.    Cox,   94   111.    400;  21  Vogt  v.  Vogt,  26  App.  (D.  C.) 

West  V.  Fitz,  109  111.  425;  Green  r.  46;    Standard   Paint    Co.   v.   Prince 

Grant,   143   111.    61,   73;    Planner   v.  Mfg.  Co.,  133  Pa.  St.  474;  Crosby  v. 

Fellows,    206    111.   136;    Spengler   v.  Davis,  2  Clark   (Pa.)   403;   Ward  v. 

Kuhn,  212  111.  186;   Olcott  v.  Tope,  Amory,    1    Curtis    (Cir.    Ct.    U.    S.) 

213  111.  124,  133;  Lord  v.  Comstock,  419. 

240  111.  492,  501,  502;   Bergman  r.  22  Doe  r.  Willan,  2  Barn.  &  Aid. 

Arnhold,  242  111.  218,  225;  McNair  84;   Collier  r.  Walters,  17  Eq.  2o2. 

V.  Montague,  260  111.  465,  472;  Bos-  ^^  Id. 

ton  Safe  Deposit  Co.  v.  Mixter,  146  24  Doe    v.    Walbank,    2    Barn.    & 

Mass.  100.  Adol.  554. 
Kales  Fut.  Int. — 13                           J93 


§192J 


ESTATES 


[ClI.  IX 


since  eases  may  be  found  where  the  power  to  lease  was  taken  as 
a  real  power  and  the  trustee's  estate  restricted.-^ 

If  the  power  to  lease  is  only  an  authorization  to  make  leases 
during  the  term  of  the  active  trusts,  it  has  no  effect  whatever  to 
raise  any  inference  that  the  trustee  is  to  take  a  fee.^*^  If  the 
power  to  lease  is  only  a  poiver  to  make  leases  (whether  there  is 
any  power  to  lease  bej'ond  the  term  of  the  trusteeship  or  not) 
the  power  cannot  be  made  the  basis  of  a  holding  that  the  trustee 
takes  the  fee.  It  seems  settled  that  a  general  devise  to  trustees 
upon  trust  to  collect  the  rents,  issues  and  profits  and  pay  the 
same  to  the  equitable  tenant  for  life  does  not  give  the  trustee 
any  power  to  make  leases  beyond  the  term  of  the  active  trusts 
and  hence  the  trustees  will  not  take  the  fee.-"  So  a  power  to 
lease  conferred  in  explicit  language  is  regularly  construed  as  a 
power  to  make  leases  to  last  only  during  the  term  of  the  active 
trusts,  and  hence  furnishes  no  basis  for  a  holding  that  the  trustee 
takes  the  fee.-^     A  power  to  make  leases  extending  beyond  the 


25  Doe  V.  Cafe,  7  Exch.  675. 

It  seems  to  be  the  fashion  in  New 
York  state  to  restrict  the  trustee's 
estate  and  to  hokl  many  of  the  trus- 
tee 's  acts  to  be  in  the  exercise  of 
real  powers.  The  exigencies  of  the 
New  York  Kule  against  Perpetui- 
ties are  probably  responsible  for 
this.  See  In  re  Opening  of  110th 
St.,  N.  Y.  S.  32. 

26  Walton  V.  Follansbee,  131  111. 
147;  Id.,  165  111.  480;  Bergengren  v. 
Aldrich,  139  Mass.  259;  Hutcheson 
V.  Hodnett,  115  Ga.  990;  Cooke  v. 
Blake,  1  Exch.  220;  Shapland  v. 
Smith,  1  Brown,  Ch.  75;  Silvester 
V.  Wilson,  2  T.  R.  444;  Baker  v. 
Parson,  42  L.  J.  Ch.  N.  S.  228; 
Thurston  v.  Thurston,  6  R.  I.  296; 
Brown  v.  Wadsworth,  168  N.  Y.  225; 
Ware  v.  Richardson,  3  Md.  505; 
Handy  v.  McKim,  64  Md.  560,  567; 
Slater  v.  Rudderforth,  25  App.  (D. 
C.)  497;  In  Hemphill's  Estate,  5 
Pa.  Dist.  690;  Ure  v.  Ure,  185  111. 
216;  Ward  v.  Amory,  1  Curt.  C.  C. 
419;   Bacon's  Appeal,  57  Pa.   504; 


Standard  Paint  Co.  v.  Prince  Mfg. 
Co.,  133  Pa.  474;  In  re  McCaffrey's 
Estate,  50  Hun.  (N.  Y.)  371;  Ack- 
land  V.  Lutely,  9  A.  &  E.  879;  Doe 
V.  Simpson,  5  East.  162. 

27  Cooke  V.  Blake,  1  Exch.  220 
Shapland  v.  Smith,  1  Brown,  Ch.  75 
Silvester  v.  Wilson,  2  T.  R.  444 
Baker  v.  Parson,  42  L.  J.  Ch.  N.  S 
228;  Thurston  v.  Thurston,  6  R.  I 
296;  Brown  v.  Wadsworth,  168  N 
Y.  225;  Ware  v.  Richardson,  3  Md 
505;  Handy  v.  McKim,  64  Md.  560, 
567 ;  Slater  v.  Rudderforth,  25  App. 
(D.  C.)  497;  In  Hemphill's  Estate, 
5  Pa.  Dist.  690;  Ure  v.  Ure,  185 
111.  216;  Ward  v.  Amory,  1  Curtis 
(Cir.  Ct.  U.  S.)  419;  Bacon's  Ap- 
peal, 57  Pa.  504;  Standard  Paint 
Co.  V.  Prince  Mfg.  Co.,  133  Pa.  474; 
III  re  McCaffrey's  Estate,  50  Hun. 
(N.  Y.)   371. 

2s  Walton  V.  Pollansbee,  131  111. 
147;  Id.,  165  111.  480;  Ackland  v. 
Lutely,  9  A,  &  E.  879;  Doe  v.  Simp- 
son, 5  East,  162;  Bergengren  v. 
Aldrich,  139  Mass.   259;    Hutcheson 


194 


Ch.  IXJ  FEE   SIMPLE  [§  193 

term  of  the  active  trusts  so  as  to  be  an  incumbrance  upcju  the 
estate  which  the  ultimate  distributee  takes  must  be  conferred 
in  explicit  terms. 

In  arguing  that  the  trustee  does  not  take  a  fee  because  there 
is  no  indefinite  power  to  make  leases,  care  must  be  taken  not  to 
make  tlie  reasoning  circular.  It  must  not  be  said  that  there  is 
no  indefinite  power  to  make  leases  because  the  trustee  takes 
only  a  limited  estate  and  therefore  the  inference  is  that  the 
power  to  lease  is  one  to  make  leases  for  that  limited  estate.  The 
poAver  to  make  leases  must  be  determined  apart  from  the  estate 
Avhich  the  trustee  has.  Luckily  this  can  be  done,  because  the 
scope  of  the  power  to  lease  is  regularly  determined  Avith  ref- 
erence not  to  the  estate  which  the  trustee  takes  but  the  period  of 
the  active  trusts.  It  is  conceivable,  however,  that  the  language 
might  be  so  evenly  balanced  that  if  the  trustee  had  a  fee  the 
poAver  to  lease  Avould  be  indefinite,  while  if  the  trustee  had  an 
estate  limited  for  the  life  of  the  cestui  it  Avould  be  a  poAver  to 
lease  only  for  the  term  of  the  cestui' s  life.  In  such  a  case  the  real 
question  is  Avhich  of  tAvo  conflicting  inferences  is  the  stronger — 
that  Avhich  arises  from  the  fact  that  the  purposes  of  the  trust 
require  only  an  estate  for  life  in  the  trustee,  or  the  inference  that 
a  general  poAver  of  leasing  is  being  conferred  by  very  broad 
language  ?  The  tAA'o  cases  of  Walton  v.  Follansbee  -^  come  near 
to  presenting  this  dilemma.  Our  Supreme  Court  seems  to  have 
held  that  the  inference  from  the  purposes  Avhich  the  trust  re- 
quire is  the  stronger. 

§  193.  Where  the  trusteeship  is  created  by  a  conveyance 
inter  vivos:  Here  at  common  laAv,  unless  there  Avere  Avords  of 
inheritance  used,  the  trustee  could  not  take  the  fee.  At  least  one 
American  jurisdiction,  hoAvever,  has  taken  the  position  that  even 
Avitliout  Avords  of  inheritance,  trustees  Avould  take  the  fee  if  the 
purposes  of  the  trust  indicated  that  a  fee  Avas  required.""^ 
Clearl.y,  R.  S.  1874,  Ch.  30,  See.  13,  makes  it  unnecessary 
in  this  state  to  use  AVords  of  inheritance  in  a  conveyance  inter 
vivos  to  trustees. 

At  common  laAv,  in  a  conveyance  inter  vivos  to  a  trustee,  if 

V.  Hodnett,  llo  Ga.  990;   Crosby  r.  3o  Npwliall     v.    Wheeler,    7    Mass. 

Davis,    2    Clark    (Pa.)    403;    In    re  189.     Sec  also  Angell  v.  Eosenbmy. 

Huhbell  Trust,  1:55  la.  6;?7.  12  Mieh.  241,  26G;  antr,  §  l.)3. 
-•M.'M   111.   147;    165   111.  480. 

195 


il93]  ESTATES  [Ch.  IX 

words  of  inheritance  were  used,  a  fee  was  conveyed  and  could  not 
be  cut  down  by  the  fact  that  an  estate  less  than  a  fee  Avas  suffi- 
cient to  serve  the  trusts.^^  R.  S.  1874,  Ch.  30,  Sec.  13,  does  not 
seem  to  have  altered  this  rule  in  the  least,  yet  our  Supreme  Court 
has  entirely  ignored  it  and  applied  to  the  construction  of  con- 
veyances inter  vivos  the  rules  applicable  to  devises  in  determin- 
ing what  estate  the  trustee  takes.  Thus,  in  both  cases  of  Walton 
V.  Follanshee,'^'-  in  spite  of  the  fact  that  there  was  an  express  con- 
veyance to  the  trustees  and  their  heirs,  the  trustees'  estate  was 
limited  to  an  estate  for  the  life  of  the  equitable  life  tenants.^^ 

31  Lewis  V.  Kees,  3  K.  &  J,  132;  •"-•131  111.  147;  165  111.  4S0. 

Colniore  v.  Tyndall,  2  Y.  &  J.  605 ;  33  To  the  same  effect  see  Ware  v. 

Watkins  v.  Specht,  7  Coldw.  (Tenn.)  Ekhardson,    3    Md.    505,    553    au'l 

585;  Bates  v.  Winifrede  Coal  Co.,  4  Handy   v.  McKini,   64  Md.  560. 
Ohio  N.  P.  N.  S.  265. 


196 


CHAPTER  X. 
FEE  TAIL. 

J;  194.  The  Statute  on  Entails:  Since  1827  there  lias  been 
in  foree  in  tiii.s  state  a  statute  on  entails,  which  is  known  as  Sec.  6 
of  the  Act  on  Conveyances. ^  It  provides  in  part:  "in  cases 
where,  by  the  common  law,  any  person  or  persons  might  hereafter 
become  seized,  in  fee  tail,  of  any  lands,  etc."  It  may  be  regarded 
as  settled  that  "by  the  common  law"  means  "under  the  stat- 
ute de  donis."^  It  follows  that  in  all  cases  where  under  the 
statute  dc  donis  a  fee  tail  would  have  been  created,  our  statute 
on  entails  operates. 

§  195.  Words  sufficient  under  the  Statute  De  Donis  to  creat? 
an  estate  tair^ — In  conveyances  inter  vivos:  In  conveyances 
inter  vivos  the  use  of  the  word  "heirs"  was  absolutely  neces- 
sary.'* No  other  word  would  do.  Once  used,-  however,  it  may 
be  followed  by  any  words  of  procreation  such  as  "of  his  body,"  ^ 
"issue  of  his  body,"  etc.  A  conveyance  to  A  "and  his  bodily 
heirs"  is  sufficient  to  create  an  estate  tail."  If.  after  the  use  of 
the  word  "heirs"  and  sufficfient  words  of  procreation,  there  are 
added  further  words  such  as  "male,"  or  "female,"  or  "on  the 
body  of"  a  certain  wife  or  h\isband  "begotten,"  an  estate  tail 
special  is  created.^ 

lE.  S.  1874,  Ch.  30,  Sec.  6.  •">  Voris  v.  Sloan,  68  111.  .')88;  But- 

2  Walker,  C.  J.,  in  Frazer  v.  Board  ler  v.  Huestis,  68  111.  594,  600 ;  Lehn- 
of  Supervisors  of  Peoria  Co.,  74  111.  dorf  v.  Cope,  122  111.  317,  328; 
282    287    288.  Doney   r.   Clipson,  285  111.   75. 

3  For  the  creation  of  estates  tail :  o  Kynor    r.    Boll,    182    111.    171; 

(a)  By  the  application  of  the  rule  Dinwiddie  r.  Self,  145  111.  290;  Coo- 
in  Shelley  's  case  see  post,  §  412.  gan  v.  Jones,  278  111.  279. 

(b)  By  gifts  over  on  failure  of  is  '  Lehndorf  r.  Cope,  122  111.  317. 
sue  see  post,  §  549.  Observe,  however,  that  in  Webbc   v. 

(c)  By  the  rule  in  Wild's  case  Webbe,  234  111.  442,  limitations  to 
see  post,  §§56],  562.  A   and   B   and   their  "personal  and 

♦  Lehndorf  v.  Cope,  122  III.  ;n7,  lawful  heirs"  did  not  create  an 
328;  Dick  r.  Ricker,  222  111.  4i:;,  estate  tail.  "Personal"  did  not 
415;  ante,  §  16.  niean  lineal. 

197 


§  196] 


ESTATES 


[Ch.  X 


§  196,  By  devise:  The  same  expressions  which  were  effec- 
tive to  create  an  estate  tail  in  a  deed  Avere  appropriate  to  create 
an  estate  tail  by  devise.*  The  rule  requiring  the  use  of  the  word 
"heirs"  was,  however,  so  far  relaxed  that  any  other  words  or 
expressions  which  indicated  lineal  descendants,  as  a  word  of 
limitation,  were  sufficient.^  Thus  a  devise  to  A  et  semini  suo;  ^^ 
to  A  and  his  seed;  ^^  to  A  and  his  issue;  ^^  to  A  and  his  off- 
spring ;  ^^  and  to  A  and  his  lineal  descendants,^^  creates  an  estate 
tail  in  A.  "Descendants"  alone  means  properly  and  primarily 
offspring,  and  excludes  collateral  heirs,^^  "Descendants"  is  so 
used  in  our  Act  on  Descent.  If  "descendants"  be  confined  to 
those  who  actually  inherit  under  the  laws  of  descent,  it  means 
"heirs  of  the  body"  strictly.  A  devise  to  "children  and  their 
descendants,"  therefore,  creates  an  estate  tail  unless  prevented 
by  some  special  context.^^     The  use  of  the  word  "forever" 


8  Blair  v.  Vanblareum,  71  111. 
290;  Kyner  v.  Boll,  182  111.  171; 
Metzen  v.  Schopp,  202  111.  275;  Ba- 
ker V.  Baker,  284  III.  537;  Lewin  i\ 
Bell,  285  111.  227. 

oKolmer  v.  Miles,  270  111.  20. 

10  Co.  Lit.  9b ;  Jarman  on  Wills, 
6th  ed.  star  p.  1133;  5th  ed.  vol.  2, 
star  p.  328. 

iiWebbe  v.  Webbe,  23'4  111.  442, 
448. 

12  Jarman  on  Wills,  5th  ed.  vol. 
2,  star  p.  413;  Webbe  v.  Webbe,  234 
111.  442,  448. 

12  Young  V.  Davies,  2  Dr.  &  Sm. 
167  ("to  my  surviving  daughters 
and  their  lawful  offspring");  Al- 
len V.  Markle,  36  Pa.  St.  117  (to  A 
for  life  and  at  his  decease  to  de- 
scendants of  his  legitimate  offspring 
forever,  but  in  case  the  said  A's 
issue  should  become  extinct,  then 
over  to  B  in  fee)  ;  Webbe  v.  Webbe, 
234  111.  442,  448. 

14  Webbe  v.  Webbe,  234  111.  442, 
448,  and  Schmaunz  v.  Goss,  132 
Mass.  141,  144,  seem  to  assume  that 
a  devise  to  A  and  B  and  their  de- 
scendants   creates    an    estate    tail. 


On  the  special  context  of  the  will 
under  consideration  it  did  not  do 
so, 

15  Century  Dictionary :  ' '  Descend- 
ant;" Bates  V.  Gillett,  132  111.  287, 
297,  and  cases  there  cited. 

16  See  Walker  v.  Walker,  25  Ga. 
420. 

If,  however,  there  be  added  the 
phrase  "the  descendants  of  a  de- 
ceased child  to  take  the  parent 's 
share,"  we  have  a  context  which 
indicates  that  descendants  is  used 
as  a  word  of  purchase  and  not  of 
limitation.  Knight  v.  Pottgieser,  176 
111.  368.  So  where  the  testator  uses 
the  phrase  "children  or  descend- 
ants, ' '  descendants  is  a  word  of 
purchase  and  there  is  a  devise  over 
to  descendants  upon  certain  contin- 
gencies. Bates  V.  Gillett,  132  111. 
287.  So  if  the  devise  is  to  "my 
children  and  their  descendants  at 
their  death,"  "descendants"  is  a 
word  of  purchase  and  the  children 
take  estates  for  life  with  a  remain- 
der to  descendants.  Kobinson  v. 
Eobinson,  89  Va.  916. 

The    suggestion    might    be    made 


198 


ClI.  X]  FEE   TAIL  l§  197 

after  descendants  helps  to  make  it  clear  that  descendants  is 
used  as  a  word  of  limitation  and  not  of  purchase.  At  tiie  same 
time  it  is  not  such  a  special  context  as  will  cause  descendants 
to  mean  heirs  generally  so  that  a  fee  will  be  created. ^"  An 
estate  tail  special  is  devised  by  a  limitation  to  the  testator's 
wife  "and  her  heirs  by  me."^** 

§  197.  In  several  cases  vrhere  the  context  contained  the 
phrase  "heirs  of  the  body"  an  estate  tail  was  upon  the  whole 
context  held  not  to  have  been  created:  In  Baulus  v.  Ash,^^ 
the  grantee,  party  of  the  second  part,  was  described  as  Amanda 
"and  the  heirs  of  her  body,"  but  the  grant  was  to  the  "party 
of  the  second  part,  her  heirs  and  assigns,"  habendum  to 
Amanda  "and  the  heirs  of  her  body."  The  granting  clause 
prevailed  and  Amanda  took  the  fee. 

In  Cooper  v.  Cooper,-^  the  grantees  were  described  as  hus- 
band and  wife  and  the  heirs  of  the  body  of  the  latter,  but  the 
granting  clause  and  habendum  both  indicated  a  fee  and  pre- 
vailed. 

In  Griswold  v.  Hicks,-^  the  grantees,  party  of  the  second 
part,  were  described  as  A,  B  and  C  "and  the  heirs  of  their 
bodies."  The  grant  was  "to  the  party  of  the  second  part, 
their  heirs  and  assigns  as  aforesaid  forever" — "meaning  and 
intending  by  this  conveyance  to  convey  to  my  said  children" 
for  life  with  certain  gifts  over;  habendum  to  "party  of  second 

that  since  estates  tail  have  long  since  tribution.      In    re    Coulden,    L.    R. 

been  abolished  in  this  state,  a  de-  L1908]  1  Ch.  320. 

vise  to  "children  and  their  descend-  it  Leake,  Land  Laws,  165,  citing 

ants"     ought     naturally     and    pri-  Vernon  v.  Wright,  7  H.  L.  Cas.  35; 

marily  to  mean  that  both  the  chil-  Davie  v.   Stevens,  Doug.   324.     But 

dren     and     their     descendants     are  see  Strawbridge  v.  Strawbridge,  220 

intended     to     take     as     purchasers;  111.  61. 

that  since  the  children  can  have  no  is  Welliver  v.  Jones,   166   111.  80; 

descendants     during     their    lifetime  Anderson  v.  Anderson,  191  111.  100. 

(Tucker    v.    Billings,    2   Jur.    N.    S.  Observe,    however,    Murfitt    v.    Jes- 

483),  the  children  and  their  descend-  sops,  94  111.  158,  where  a  limitation 

ants  cannot  take  jointly  and  hence  to  the  wife  and  her   and  my  heirs 

descendants  as   purchasers  were  in-  gave  the  wife  a  fee. 

tended  to  take  in  the  case  of  any  is  19  111.  187. 

children  who  died  in  the  lifetime  of  -o  76  lU.  57. 

the  testator,  or  before  the  death  of  21  132  111.  494;   ante,  §179. 

some   life   tenant,   or  period  of   dis- 

199 


§  198]  ESTATES  [ClI.  X 

part,  their  heirs  and  assigns  forever."  This  was  held  to  give 
A,  B  and  C  life  estates  with  gifts  over. 

In  Duffield  v.  Duffield,--  the  grantee  Avas  described  as  Henry 
*'and  the  heirs  of  his  body."  The  conversance  was  to  ''said 
grantee"  with  a  further  context  imposing  conditions  on  the 
grantee  and  providing  that  upon  the  grantor's  death  the  grant 
should  "become  unconditional  and  absolute."  It  was  held  that 
Henry  took  the  fee.^-"*  It  was  also  intimated  that  "heirs  of  the 
body"  were  words  of  purchase  -■*  making  a  gift  to  a  class  which 
would  be  ineffective  because  none  were  in  esse  when  the  deed 
took  effect.-" 

In  Hempstead  v.  Hempstead  -*'  several  pieces  of  land  were  de- 
vised to  several  devisees  respectively  by  different  clauses  which, 
by  themselves,  created  a  fee.  A  subsequent  clause  provided :  "It 
is  my  intention  and  express  desire  that  all  property,  of  every 
kind  and  character,  herein  bequeathed  shall  go  directly  to  each 
of  my  said  daughters  as  described  herein  and  to  the  heirs  of 
their  bodies  or  direct  descendants  and  to  no  one  else,  and  if 
either  of  my  said  daughters  shall  decease  before  inheriting 
under  this  will  and  leaving  surviving  no  children  or  descendants 
of  children,  such  share  shall  go  to  the  survivors  of  the  legatees 
herein."  Upon  the  whole  context  this  was  held  not  to  create 
a  fee  tail. 

§  198.  Suppose  the  words  used  are  not  sufficient  under  the 
Statute  De  Donis,  to  create  an  estate  tail  but  are  sufficient  to 
express  an  intention  to  create  such  an  estate :  Suppose  for  in- 
stance in  a  conveyance  inter  vivos  the  limitations  are  to  A  "in 
fee  tail,"  or  to  "A  and  the  issue  of  his  body  in  fee  tail."  Three 
difficulties  at  once  arise:  Is  an  estate  tail  created?  If  so,  is 
it  one  upon  which  the  statute  on  entails  operates?  If  no  estate 
tail  is  limited,  what  estate  is  created? 

First :  Under  the  rule  of  the  common  law  no  estate  tail  would 
be   created  because   the  word   "heirs"    was   not   used.-'^      Nor 

22  268   III.   29.  "heirs,"    "heirs"   was   a   word    of 

23  Compare  the  result  reached  iu  purchase.  See  also,  Seymour  i;. 
Coogan  V.  Jones,  278  111.  279,  ante,       Bowles,  172  111.  521. 

§  179.  25  Post,  §§  475  et  seq. 

2*  Compare   this   with   cases,  ante,  26  285  111.  448. 

§  158,   where  it  was  contended  that  27  Ante,  §§  195,  16. 
in     a     limitation     to     A     and     his 

200 


Ch.  X]  FEE    TAIL  [§  198 

would  it  liave  been  permissible  to  turn  the  word  "issue"  into 
"heirs"  by  any  process  of  construction.-'*  If  an  estate  tail  is 
limited,  it  must  be  by  virtue  of  Sec.  13  of  the  Act  on  Convey- 
ances. That  provides  that  a  fee  is  created  "if  a  less  estate  be 
not  limited  by  express  words  or  do  not  appear  to  have  been 
granted,  conveyed,  or  devised  by  construction."  Does  this  per- 
mit a  less  estate  than  a  fee,  namely,  a  fee  tail  to  be  limited  inter 
uivos  "by  express  words,"  or  "by  construction"  without  the 
technical  use  of  the  word  "heirs"?  ^'* 

Second:  If  an  estate  tail  is  created  it  would  come  within 
the  operation  of  the  statute  on  entails.  That  act  while  still 
referring  to  "cases  where,  by  the  common  law,  any  person  or 
persons  might  hereafter  become  seized  in  fee  tail,"  would  prop- 
erly be  regarded  as  amended  by  the  later  act  known  as  Sec 
13  in  the  Act  on  Conveyances  so  as  to  include  an  estate  tail 
created  by  language  sufficient   for  that  purpose  under  Sec.  13. 

Third:  If  no  estate  tail  were  limited,  what  estate  would  A 
take?  It  must  be  either  a  fee  or  a  life  estate,  (depending  upon 
the  effect  of  Sec.  13  of  the  Act  on  Conveyances.  That  would 
operate  to  give  A  a  fee  if  it  were  not  for  the  words  "in  tail," 
or  the  words  and  the  "issue  of  his  body  in  tail."  These  ex- 
pressions indicate  an  intention  to  create  an  estate  less  than 
a  fee,  while  at  the  same  time  (ex  hypothesi)  failing  to  do  so. 
See.  13  provides  that  the  fee  will  be  created  "if  a  less  estate 
be  not  limited  by  express  words,  or  do  not  appear  to  have  been 
granted,  conveyed,  or  devised  by  construction  or  operation  of 
law."  Does  this  mean  that  the  statute  fails  to  create  a  fee 
when  there  is  merely  an  expressed  intent  that  an  estate  less 
than  a  fee  shall  be  created  without  that  less  eslate  actually 
being  created,  or  does  the  statute  mean  that  a  fee  is  created 
unless  the  less  estate,  which  is  expressly  intended,  is  in  fact 
created  and  takes  effect  as  such  lesser  estate?  Certainly  the 
latter  view  would  be  open  to  the  courts.  Under  it,  A  would  take 
the  fee.  This  may  be  justified  by  the  fact  that  an  intent  to 
'Teate  a  fee  tail  is  more  nearly  satisfied  by  giving  a  fee  than  In- 
giving  a  life  estate  with  a  reversion  to  the  grantor.  A  fee  tail 
was  permitted  by  the  courts  and  by  statutes  to  be  turned  into 

-8  But  see  Dick  v.  Kicker,  222  111.  -»  See    Dick     c.    Kicker.    222    111. 

413.  413. 

201 


§  199]  ESTATES  [Ch.  X 

a  fee  simple  b}*  fines  and  recoveries.^"  Under  modern  statutes 
it  may  be  turned  into  a  fee  by  a  simple  disentailing  convey- 
ance.^^ Some  statutes  have  abruptly  turned  the  estate  tail 
into  a  fee  simple. ^- 

§  199.  Suppose  personal  property  is  limited  with  such  ex- 
pressions as,  if  used  in  a  conveyance  or  devise  of  real  estate, 
vi^ould  create  an  estate  tail — Suppose  the  limitations  of  per- 
sonal property  are  to  "  A  and  the  heirs  of  his  body, "  or  to  "  A 
for  life  and  then  to  the  heirs  of  his  body":  It  is  settled  that 
an  expressed  intention  to  create  an  estate  tail  in  personal  prop- 
erty fails  of  effect  because  no  such  thing  as  an  estate  tail  in 
personal  property  is  recognized.  Such  an  expressed  intention 
operates  to  confer  an  absolute  interest  in  personal  property.^*' 
Whether,  however,  such  an  expressed  intent  exists  is  a  matter 
of  construction.  In  handling  it,  the  manners  and  customs  of 
the  country  must  be  given  some  consideration.  For  instance, 
in  England  where  estates  tail  have  been  a  conspicuous  feature 
of  conveyances  and  devises,  and  well  known  in  practice,  it 
would  be  most  natural  to  assume  that  wherever  personal  prop- 
erty was  transferred,  whether  inter  vivos,  or  on  death  to  "A 
and  the  heirs  of  his  body,"  the  phrase  "heirs  of  his  body" 
would  be  taken  as  words  of  limitation  indicating  an  intent  to 
create  a  fee  tail  in  personalty.  The  absolute  interest,  there- 
fore, would  pass  to  A  by  operation  of  law.  Such  would  seem 
to  be  the  result  actually  reached  in  England.^^  So  in  England 
in  the  eighteenth  century,  when  the  Ride  in  Shelley's  Case  was 
looked  upon  as  a  rule  of  construction,  and  perhaps  as  such 
actually  applied  to  personal  property,  it  became  settled  in  such 
a  way  as  not  afterwards  to  be  changed,  that  limitations  of  per- 
sonal property  to  A  for  life  and  then  to  the  heirs  of  A's  body 
amounted  to  an  attempt  to  create  an  estate  tail  in  personal 
property  and  therefore  A  took  the  absolute  interest. ^^  It  is 
not  surprising  that  in  some  jurisdictions  in  this  country,  merely 
through  the  habit  of  following  English  precedents,  courts  have 

so  Ante,  §17.  July   1731)    Fitzg.   9,   314,  W.    Kel. 

s\  Ante,   §  19.  3  3. 

32Jn/e,  §19.  «•-' Butterfield  V.  Butterfield,  1  Ves. 

33  Hempstead  v.  Hempstead,  285  Sr.  133 ;  Eichards  v.  Bergavenny,  2 
111.  448,  454.  Vern.  324;   Elton  v.  Eason,  19  Ves. 

34  Attorney    General    v.    Hall     (5  73;  pos^,  §  437. 

202 


Ch.  X]  FEE    TAIL  [§  199 

held  that  limitations  of  personal  i)roperty  to  A  and  the  heirs 
of  his  body,^*^  and  to  A  for  life  and  then  to  the  heirs  of  his 
body,^'^  were  attempts  to  create  an  estate  tail  and  conferred 
by  operation  of  law  an  absolute  interest.  Other  courts  in  this 
country,  however,  have  recognized  the  now  settled  proposition 
that  the  Rule  in  Shelley's  Case  does  not  apply  to  personal  prop- 
erty,-^^  and  that  estates  tail  are  so  far  unknoAvii  to  our  habits 
and  customs  of  conveyancing  that  it  was  absurd  to  infer  that 
any  one  had,  as  a  matter  of  actual  intention,  attempted  to 
create  such  an  estate,  especially  in  personal  property.  Such 
courts  have  accordingly  refused  to  regard  the  words  "heirs  of 
the  body"  as  words  of  limitation,  either  where  the  limitations 
were  to  A  and  the  heirs  of  his  body,  or  to  A  for  life  and  then 
to  the  heirs  of  his  body.  "Heirs  of  the  body"  in  both  cases 
have  been  held  to  be  words  of  purchase,  resulting  in  both  cases 
alike,  in  an  estate  to  A  for  life  with  a  gift  over  to  the  heirs  of 
the  body  of  the  life  tenant. ^*^  Once  "heirs  of  the  body"  are 
taken  as  words  of  purchase,  the  court  is  confronted  with  the 
fact  that  A  can  have  no  heirs  of  his  body  until  his  death.  Hence, 
if  "heirs  of  his  body"  is  to  be  given  any  effect  as  words  of 
purchase,  the  limitations  must  be  to  A  and  at  his  death  to  the 
heirs  of  his  body.  This  gives  A  a  life  estate  ^"^  with  a  gift  over 
to  the  heirs  of  his  body  absolutely.  Our  Supreme  Court  has 
definitely  held  that  the  Rule  in  Shelley's  Case  does  not  apply 
to  personal  property  where  the  limitations  are  to  A  for  life 
and  then  to  A's  heirs^^  The  same  ruling  is  to  be  expected 
where  the  limitations  are  to  A  for  life  and  then  to  the  heirs  of 

30  Duncan    v.     Martin,     7     Yerg.  Ind.   135;    Watts  v.   Clardy,   2  Fla. 

(Tenn.)    519.  369;  Mason  v.  Pate's  Exr.,  34  Ala. 

37  Denson    r.    Thompson,    19   Ark.  379 ;  Maehen  v.  Machen,  15  Ala.  373. 

66;  Dott  V.  Ciinnington,  1  Bay   (S.  ^»  Post,  §§434-439. 

C.)    453;     Account    of    William    R.  39  State   v.   Welch,   175   Mo.   App. 

Tillinghast,    25    R.    I.    338;    King's  303      ("to     my     beloved     daughter 

Heirs  v.  King's  Adm.,  12  Ohio  390;  Agnes  Farley,  and  the  heirs  of  her 

Williamson    r.    Daniel,    12    Wheaton  body");    Crawford    v.    Wearn,    115 

568;   Stockton  v.  Martin,  2  Bay   (S.  N.   C.  540    (to  A  for  life  and  then 

C.)  471;  Hughes  v.  Nicklas,  70  Md.  to  the  heirs  of  A's  body);  Clemens 

484;  Polk  v.  Paris,  9  Yerg.  (Tenn.)  v.  Heckscher,  185  Pa.  St.  476. 

209;     Pressgrove     v.     Comfort,     58  -^^  Ante,    §162.     But   see   Duffield 

Miss.   644;    Hampton  v.   Rather,   30  v.  Duffield,  268  111.  29. 

Miss.    193;    Powell    v,   Brandon,    24  ^i  4  111.  Law  Rev.  642. 
Miss.  343;    Sniitli  v.  McCormick,  46 

203 


^200] 


ESTATES 


[Ch.  X 


A's  body,  so  that  A  would  have  a  life  estate  with  a  gift  over 
to  the  heirs  of  his  body.  What  the  court  will  do  where  per- 
sonal property  is  limited  "to  A  and  the  heirs  of  his  body" 
remains  in  doubt. ^- 

§  200.  Suppose  the  limitations  of  personalty  are  to  "  A  and 
his  issue"  or  to  "A  and  the  issue  of  his  body":  AVhen  the 
courts  in  England  and  in  this  country  have  had  to  deal  with 
limitations  to  "A  and  his  issue"  (or  to  ''A  and  the  issue  of 
his  body,"  which  is  the  same),  they  have  regularly  declined  to 
regard  the  words  "and  his  issue"  or  "and  the  issue  of  his 
body"  as  words  of  limitation  indicating  an  attempt  to  create 
an  estate  tail.  They  have,  on  the  contrary,  taken  these  expres- 
sions as  primarily  words  of  purehase.^^  Usually  A  and  his 
issue  who  are  in  esse  have  been  held  to  take  absolutely  as  tenants 
in  common,'**  In  a  few  instances  a  special  context  has  seemed 
to  require  that  A  take  an  estate  for  life  with  a  gift  over  to 
the  issue  of  A  at  his  death.'' ^  Where  the  gift  is  to  a  class  of 
persons  "and  their  issue"  at  a  future  period  of  distribution, 
the  "issue"  have  been  held  to  take  only  in  place  of  members 
of  the  class  dying  before  the  period  of  distribution.*^ 


*-  It  should  be  observed,  however, 
that  in  Duffield  v.  Duffield,  268  111. 
29  (ante,  §  196),  where  in  a  deed 
conveying  real  estate  the  grantee 
was  described  as  Henry  '  *  and  the 
heirs  of  his  body"  and  the  grant 
■was  to  "said  grantee,"  our  Su- 
preme Court  intimated  that  ' '  heirs 
of  the  body ' '  was  used  as  words 
of  purchase,  and  that  an  attempt 
was  made  to  create  a  joint  estate 
in  Henry  and  the  heirs  of  his  body; 
that  Henry  took  the  fee  alone  be- 
cause "heirs  of  his  body"  could 
not  be  ascertained  until  his  death 
and  the  attempted  conveyance  to 
grantees  not  in  esse  when  the  deed 
took  effect  failed,  according  to  a 
doctrine  followed  in  this  state.  See 
post,  §§  475,  476. 

43  7n  re  Coulden  L.  K.,  [1908]  1 
Ch.  320;  2  Jarman  on  Wills,  6th 
ed.  by  Sweet,  vol.  2,  1930;  Theo- 
bald on  Wills,  7th  ed.  p.  478;  Haw- 


kins on  Wills,  2na  ed.  hj  Sanger, 
241. 

In  Parkin  v.  Knight,  15  Sim.  8."., 
where  a  different  result  was  readied, 
real  and  personal  property  were 
given  together  and  as  to  the  real 
estate,  the  words  ' '  and  issue ' '  were 
regarded  as  intended  to  create  an 
estate  tail  and  were  capable  of  so 
doing  in  England  at  the  time.  Nev- 
ertheless, the  soundness  of  the  ease 
as  applied  to  personal  property  is 
now  doubted  in  Hawkins  on  Wills, 
2nd  ed.  by  Sanger,  241.  See  also 
Howston  V.  Ives,  2  Eden  216. 

**  Hawkins  on  Wills,  2nd  ed.  by 
Sanger,  241 ;  Theobald  on  Wills,  7th 
ed.  478;  McDavid  v.  Bohn,  212  111. 
App.  534. 

•«5  Cleveland  v.  Havens,  13  N.  J. 
Eq.  101.  See  also  Seymour  v. 
Bowles,  172  111.  521. 

46  7,1  re  Coulden  L.  R.,  [1908]  1 
Ch.  320. 


204 


CHAPTER  XI. 
ESTATES  FOR  LIFE. 

TITLE  I. 
BY    EXPRESS    WORDS. 

s^  201.  Life  estate  defined:  A  lite  estate  is  one  for  an  un- 
certain duration  and  not  an  estate  at  will  or  a  fee  simple 
determinable.  An  estate  at  will  is  one  at  the  will  of  both  par- 
ties.' An  estate  at  the  will  of  one  party  is  usually  construed  to 
he  at  the  will  of  both  parties.-  If,  however,  an  estate  is  at  the 
will  of  one  party  only,  it  is  an  estate  for  an  uncertain  period  and 
not  an  estate  at  will.  It  is  therefore  classified  with  life  estates 
as  a  freehold.-' 

j;  202.  Life  estates  created — By  words  explicitly:  Any 
words  which  indicate  explicit!}'  that  one  is  to  hold  for  an  un- 
certain period,  but  not  at  the  will  of  both  the  grantor  or  rever- 
sioner and  the  transferee,  will  create  a  freehold  or  life  estate. 
Practically  the  usual  formula  is  to  limit  an  estate  "to  A  for 
his  life. "  ^  A  devise  to  a  wife  during  widowhood,-'"'  or  so  long 
as  she  remains  unmarried "  creates  a  life  estate  in  the  wife 
for  the  period  indicated."     It  makes  no  difference  that  the  gift 

1  Co.  Lit.  55a;  3  Oray's  Cases  on  crts  v.  Roberts,  140  111.  :U5; 
Prop.,  2nd  ed.  315.  Springer    v.    Savage,    14;i    111.    .'{Ol ; 

2  Co.  Lit.   55a.  Gaffield   v.    Plumber,    175    111.    521; 

3  Beeson  ?•.  Burton,  12  C.  B.  647  Bowerman  v.  Sessel,  191  111.  651  ; 
(1852);  :\  Gray's  Cases  on  Prop.,  Radebaugh  r.  Radebaugh,  266  111. 
2nd  ed.  311.  199;   The  People  v.  Freese,  267  III. 

•«  Fairman    v.    Beal,    14    111.    243;  164;    Geist    v.    Huffendit-k,    272    111. 

Batterton   v.    Yoakum,   17   111.   288;  99. 

Boyd   r.  Strahan,  36  111.  355;   Mul-  o  Green    v.    Hewitt,    97    111.    11.!; 

berry  v.  Mulberry,  50  111.  67;  New-  Kratz  v.  Kratz,  189  111.  276. 

man  v.  Willetts,  52  111.  98;  Mather  e  Cowman  v.  Glos,  255  111.  377. 

r.   Mather,    103   111.   607;   Railsback  7  But  in    Curamings   r.   Lohr,   246 

V.  Lovejoy,   116  111.  442;   Kaufman  111.  577,  where  the  devise  was  to  the 

V.  Breckinridge,  117  111.  305;  Walk-  wife     "provided     she     remains    my 

er  V.   Pritehard,   121   111.   221;    Sid-  widow,"  the  widow  took  a  fee  suh- 

dons  V.  Cookrell,  131  111.  653;   Rob-  jeet  to  an  executory  devi.se  over. 

205 


§  203]  ESTATES  [Ch,  XI 

over  is  ' '  after  her  death. "  »  A  lease  for  ten  years  after  the 
d^ath  of  A,^  or  for  five  years  and  as  much  longer  as  oil  and 
gas  is  produced  by  the  land  ^^  create  freehold  or  life  estates 
for  the  periods  indicated. 

In  Geist  v.  Hujfendick'^^  where  land  was  devised  to  two 
daughters  for  their  lives  and  the  interest  of  each  to  descend 
to  her  heirs,  it  was  held  that  each  took  an  estate  for  the  life 
of  the  longest  liver  as  tenants  in  common  and  that  on  the 
death  of  either,  her  interest  till  the  death  of  the  other  descended 
to  her  heirs. 

§  203.  Expressly  by  construction:  The  cases  of  life  estates 
expressly  created  by  construction  have  been  largely  dealt  with 
in  drawing  the  line  between  language  which  creates  a  life  es- 
tate and  that  which  is  sufficient  to  limit  a  fee  simple.^-  In 
addition  to  the  cases  already  referred  to,  notice  should  be  taken 
of  the  following. 

In  Thompson  v.  Mason,^^  there  was  in  question  a  devise  of 
the  net  income  to  the  wife  until  the  majority  of  the  testator's 
youngest  child,  "which  one-third  is  to  be  for  her  dower  in  my 
estate."  This  was  lield  to  give  the  wife  a  life  estate,  which 
ceased  at  her  death,  before  the  youngest  child  reached  twenty- 
one.  The  special  context  relied  upon  was  that  the  income  was 
to  be  for  her  dower.  That  indicated,  by  reference  to  the  primary 
meaning  of  dower,  an  estate  for  not  longer  than  the  widow's 
life. 

In  Des  Boeuf  v.  Des  Boeuf,^*  the  testator  provided  that  the 
balance  of  his  estate,  both  real  and  personal,  should  "descend 
to  my  wufe,  Julia,  and  my  son  [naming  him],  as  the  statutes 
of  the  state  of  Illinois  provide."  Under  the  statute,  the  son 
being  the  only  heir,  took  the  fee  and  the  wife  had  only  her 
dower  interest  in  one-third  during  her  life.  It  was  held  that 
the  wife  and  the  son  took  interests  in  this  manner.  The  reference 
to  the  statutes  of  the  state  of  Illinois  was  sufficient  not  only  to 
fix  the  proportion  of  the  whole  estate  which  each  took,  but  also 
to  determine  the  character  of  the  estate  of  each. 

8De  Vitto  V.  Harvey,  262  111.  6fi.  n  272  111.  99. 

n  Il'ull  V.  Ensinger,  2'il  111.  160.  vi  Ante,  SS  160  et  seq. 

if'Daughetee  v.  Ohio  Oil  Co.,  26.3  is  61  111.  208. 

111.  .518.  !•«  274  111.  594. 

^06 


ClI.  XI]  LIFE   ESTATES  [§203 

In  Lomax  v.  Shiim,^^  there  was  a  devise  to  a  wife  of  certain 
described  real  estate  in  general  terms  sufficient  to  confer  the 
fee  under  Section  13.  There  followed  a  devise  of  "all  the  per- 
sonal property"  and  a  further  devise  of  "the  balance  of  my 
estate"  to  the  wife  for  life,  with  gifts  over.  Upon  proof  that 
the  testator  had  no  other  real  estate  except  that  particularly 
described,  it  was  held  that  "balance  of  my  estate"  referred 
to  the  real  estate  already  specifically  described  and  gave  the 
wife  only  a  life  estate  in  it. 

In  Nose  v.  llule,^*^  on  a  very  special  context,  words  limiting 
personal  property  to  a  widow  during  widowhood  were  held  to 
apply  also  to  a  previous  devise  of  real  estate. 

In  Morrison  v.  Schorr,^^  the  testator  devised  specifically  de- 
scribed real  estate  to  his  wife  for  life  "also  all  rents,  income 
and  profits  arising  from  all  my  real  estate"  except  the  specifi- 
cally described  property  already  devised,  until  "the  eldest  one 
of  my  children  has  attained  the  age  of  eighteen  *  *  *  after 
which  my  wife  shall  recover  one-third  only  of  the  net  rents 
and  income  of  such  real  estate,  the  other  two-thirds  to  be  paid 
to  and  equally  divided  among  my  children."  In  a  subsequent 
clause,  the  testator  devised,  "all  my  real  estate  to  my  children 
by  my  present  wife  in  equal  shares."  It  was  held  that  while 
a  gift  of  rents  and  profits  to  the  wife  was  equivalent  to  a  gift 
of  an  estate  of  some  sort,  and  while  under  Section  13  that 
estate  would,  prima  facie,  be  a  fee  simple,  yet  on  the  whole 
context  the  estate  devised  was  only  for  life.  The  gift  of  all 
the  testator's  real  estate  to  his  children  indicated  that  the  wife's 
estate  was  restricted.  The  word  "also"  was  read  "in  like 
manner,"  so  that  the  wife  took  the  same  estate  bj'  the  gift  of 
the  income  that  she  had  taken  in  the  specifically  described  real 
estate.  ^^ 

In  Stvaim  v.  Stvaim,^^  where  the  devise  was  of  real  estate  to 
the  wdfe  simpliciter,  followed  by  these  words:  "I  also  be- 
queath" personal  property  "to  be  held  by  her  until  her  death," 
the  wife  took  a  life  estate  only  in  the  realty. 

1-'  162  III.  124.  lliat   a   direction   that   the   share  of 

1^185  111.  o78.  a   (laughter   should  "always   reniaiu 

1"  197  111.  554.  in  trust"  meant  a  trust  only  during 

18  In    Gucrin    i;.    ("Jnerin,    270    III.  the  life  of  the  daughter. 
2;?9,  it  was  intimated  by  the  Court  I'J  284  111.  105. 

207 


§  204]  ESTATES  [Ch.  XI 

TITLE  II. 

IMPLICATION  OF  LIFE  ESTATES,  DISTRIBUTIVE  CONSTRUCTION 
AND    DISPOSITION    OF    INTERMEDIATE    INCOME. 

§  204.  The  problems  stated:  Suppose  a  testator  makes  a 
devise  or  beciiiest  to  take  effect  after  the  death  of  A,  without, 
however,  expressly  giving  any  interest  to  A.  Does  A  take  a 
life  estate  by  implication  ?  If  not,  what  happens  to  the  income 
or  the  rents  and  profits? 

Suppose  a  testator  devise  Blaekacre  to  A  for  life  and  after  the 
death  of  A  Blaekacre  together  with  other  property  is  devised 
to  B.  Here  three  questions  at  once  arise.  Does  A  take  a  life 
estate  by  implication  in  the  property  other  than  Blaekacre? 
If  not,  then  are  the  words  "after  the  death  of  A"  to  be  taken 
distributively  so  that  they  will  apply  only  to  Blaekacre,  thus 
making  a  devise  of  the  rest  of  the  estate  to  take  effect  in  B 
immediately  upon  the  testator's  death?  If  there  is  no  impli- 
cation of  a  life  estate  to  A  and  no  distributive  construction, 
then  what  becomes  of  the  intermediate  income  of  the  property 
other  than  Blaekacre  until  A's  death? 

These  cases  show  the  way  in  which  the  questions  to  be  con- 
sidered may  arise  and  also  the  way  in  which  three  apparently 
unconnected  subjects  may  in  fact  come  up  for  consideration 
in  a  given  case.  Obviously  also  the  difficulties  presented  in 
the  cases  put  must  in  most  instances  be  caused  by  the  failure 
of  the  testator's  mind  to  work  upon  the  effect  of  the  language 
used  under  the  circumstances  which  Avill  probably  be  presented. 
Clearly  the  circumstances  surrounding  the  making  of  the  in- 
strument can  be  of  no  particular  benefit  in  throAving  light  upon 
the  expressed  intent.  The  rules,  therefore,  established  by  the 
cases  must  be  regarded  as  supplying  results  independently  of 
any  actual  intention  on  the  part  of  the  testator.  They  should, 
therefore,  be  adhered  to  as  establishing  definite  rules  of  con- 
struction, not  to  be  departed  from  unless  a  real  special  context 
Avarrants  it. 

§  205.  Implication  of  the  life  estate  where  there  is  a  ^ft 
after  death  of  A:  Where  the  gift  after  the  death  of  A  is  to 
;j11  of  the  testator's  heirs  at  law  (if  real  estate  is  involved), 
or  to  all  the  next  of  kin  (if  personalty  be  involved) — no  more 
and  no  less — and  there  is  no  special  context  affecting  the  mat- 

208 


( "  1 1 .  X I J  LIFE   ESTATES  [  §  205 

ter,  a  life  estate  in  A  is  regularly  found.^"  The  reason  for  this 
was  that  since  the  heir  was  expressly  excluded  till  the  death  of 
A,  an  incongruity  or  absurdity  would  arise  if,  before  the  death 
of  A,  the  heir  were  let  in  to  enjoy  the  estate  because  of  an 
intestacy.  The  only  way  to  prevent  this  absurdity  or  incon- 
gruity was  to  give  a  life  estate  to  A.  The  basis  for  the  regular 
implication  of  the  life  estate  in  these  cases  is  the  incongruity 
which  would  otherwise  arise.  Any  circumstances,  therefore, 
whicli  eliminate  that  incongruity  necessarily  prevent  the  ap- 
plication of  the  general  rule  in  favor  of  the  implicatioii  of  the 
life  estate.  For  instance,  if  the  gift  after  the  death  of  A  be 
to  one  Avho  is  not  the  testator's  heir  at  law,  and  there  be  no 
special  context,  no  estate  for  life  in  A  can  be  implied.^ ^  How- 
ever plausible  it  may  be  that  A  was  intended  to  take  a  life  estate, 
that  inference  is  mere  speculation  and  conjeciui-e,  and  insuf- 
ficient as  a  basis  for  implying  the  life  estate  in  A.  Suppose  a 
gift  be  made  to  all  the  testator's  heirs  at  law  and  no  others 
from  and  after  the  death  of  A,  and  thereafter  a  residuary  clause 
is  added,  so  that  if  it  be  held  that  there  is  no  gift  to  A  by  im- 
plication the  residuary  devisee  will  be  entitled.  If  the  residuary 
devisee  is  not  the  same  as  the  heir  or  heirs  at  law  it  would  seem 
that  no  gift  to  A  for  life  could  be  implied,  for  again  the  in- 
congruity has  been  eliminated."-     The  same  is  true  if  property 

20  (a)  Cases  where  real  estate  was  -i  Aspinall    i-.   Pctvin,  1   S.  &   St. 

involved  and  the  gift  after  the  death  544    (1824)  ;    Baruet   r.   Barnet,   29 

of  A  was  to  the  testator's  heirs  at  Beav.    239    (1861);    Harris    i'.    Du 

law:  1  Jarman  on  Wills  (6  ed.  Bige-  Pasquier,    26    L.    T.     689     (1872); 

low),    *498,    499,    and    many    cases  Greene   v.  Flood,   15   L.   R.   Ir.   45(i 

there  cited,  to  which  may  be  added  (1885);     Doughty     v.     Stillwell,     1 

the  following:   Doughty  r.  Stillwell,  Bradf.    300,    310    (1850).      But    see 

1  Bradf.   (N.  Y.)    300,  310;   White  Willis  v.  Lucas,  1  P.  Wms.  472,  of 

r.  Green,  1   Ired.  Eq.    (N.  C.)   45;  which  case  Jarman  says  (1  Jarman, 

Macy   V.  Sawyer,  66  How.  Pr.  381;  6    ed.    Bigelow,    *499,    n.    b.)  :     It 

Kelly   V.   Stinson,   8   Blackf.    (Ind.)  "seems    inconsistent    with,    and    is 

387;  Rathbone  t'.  Dyckman,  3  Paige,  overcome    by    the    mass    of    authori- 

Q,    g   27.  ties.     The  point  indeed  was  not  deli 

(b)    Cases  where  personalty   was  nitely  disposed  of." 

involved:  1  Jarman  on  Wills  (6  ed.  o;  Cranley  v.  Dixon,  23  Beav.  512: 

Bigelow),  *510,  511;  James  i^  Shan-  Hudleston   i-.   Gouldsbury,   10   Bern, 

non,  Ir.  R.  2  Eq.  118.    Contra,  die-  547. 
turn  of  White  r.  Green,  1  Ired.  Eq. 
(N.  C.)   45. 

KHles  Flit.  Int.— -14  209 


§  205]  ESTATES  [Ch.  XI 

is  appointed  from  and  after  the  death  of  A,  but  there  is  a  gift 
in  default  of  appointment  Avhieh  will  take  effect  as  to  the  interest 
prior  to  A's  death.- ^  Again,  suppose  that  the  gift  after  the 
death  of  A  is  itself  a  residue  of  personalty  or  a  mixed  residue 
of  realty  and  personalt}^  so  that  according  to  the  usual  rule  -^ 
if  A  does  not  take  a  life  estate  by  implication  the  intermediate 
income  must  accumulate  and  pass  to  the  one  ultimately  en- 
titled. Here  the  fact  that  the  one  entitled  after  the  death  of  A 
is  the  testator's  heir  at  law  or  next  of  kin — no  more  and  no 
less — presents  no  incongruity  whatever.  Hence  there  can  be 
no  basis  for  the  implication  of  a  life  estate  according  to  any 
general  rule.-^ 

If  the  gift  after  the  death  of  A  is  to  part  only  of  the  heirs  at 
law  or  next  of  kin  of  the  testator,  or  to  all  the  heirs  at  law 
or  next  of  kin  and  to  a  stranger  there  is  less  incongruity  than  in 
the  case  where  the  gift  after  the  death  of  A  is  to  the  heirs  at  law 
or  next  of  kin — no  more  and  no  less.  There  is  less  incongruity 
in  all  the  heirs  at  law  being  let  in  during  the  life  of  A  and  then 
part  only  allowed  to  take  after  the  death  of  A,  or  all  allowed 
to  take  together  with  a  stranger  after  the  death  of  A,  than  there 
is  where  the  heirs  at  law  are  let  in  until  A's  death  and  then 
the  same  heirs  at  law  take  after  A's  death.  At  first  there  was 
an  inclination  to  imply  the  life  estate  in  A  readily,  even  where 
the  gift  after  the  death  of  A  was  to  part  only  of  the  heirs  at 
law  or  to  all  the  heirs  at  law  and  a  stranger.  This  seems  to 
have  been  the  attitude  of  the  English  judges  in  the  eighteenth 
century.26  In  the  first  three-quarters  of  the  nineteenth  century 
we  have  a  period  of  clearly  conflicting  opinions.  In  1862, 
Kinderslej^  V.  C,  in  Stevens  v.  Hale,-'^  held  that  where  the 
gift  after  the  death  of  A  was  to  the  testator's  heirs  and  strangers, 
no  life  estate  would  be  implied.  On  the  other  hand,  in  1867, 
Stuart,  V.  C,  in  Hum2)hreys  v.  Humphreys,-^  held  that  where 
the  gift  was  to  part  only  of  the  next  of  kin  of  the  testator  the 

23  Henderson  v.  Constable,  5  Beav.  5  Burr,   2608 ;    Bird   v.  Hunsdon,   2 

297.  Swanst.   342. 

2i  Post,  §208.  -27  2  Dr.  &  Sm.  22.    See  also  Rom - 

^5  Cf.  Ralph  V.  Carrick,  5  Ch.  Div.  illy,  M.  R.,  in  Barnet  v.  Barnct,  29 

984,  per  Hall,  V.  C.  Beav.  2:59.   , 

-0  Roc   d.   Bendale  v.   Summerset,  -»  L.  R.,  4  Eq.  475. 

210 


Cli.  XI]  LIFE  ESTATES  [§205 

life  estate  would  be  implied.-"-'  Finally  in  1879  Ralph  v.  Car- 
rick  3"  seems  to  have  settled  the  law  in  England  that  where  the 
gift  is  to  all  the  heirs  at  law  or  next  of  kin  of  the  testator  and 
a  stranger  after  the  death  of  A,  no  life  estate  in  A  will  be  im- 
plied. Thereafter  it  was  held  with  equal  firmness  where  the 
gift  after  the  death  of  A  was  to  less  than  all  the  next  of  kin 
or  heirs  at  law  that  the  life  estate  would  not  be  implied.''^  Thus 
the  English  judges,  from  implying  tiie  life  estate  loosely  as  the 
result  of  what  they  guessed  to  be  a  probable  intention  on  the 
part  of  the  testator,  came  to  regard  Huch  implication  as  rather 
the  result  of  speculation  and  conjecture  and  as  leaving  the 
rights  of  parties  too  much  in  the  discretion  of  individual  judges. 
Accordingly  they  substituted  in  its  place  a  definite  rule  designed 
to  supply  a  recognized  gap  eitlier  in  the  testator's  intention  or 
in  his  expression  of  intention,  or  both. 

There  may,  of  course,  be  cases  containing  a  special  context 
sufficient  to  support  the  inference  of  a  life  estate  in  A  apart 
from  the  application  of  any  rule  by  which  such  life  estate  is 
regularly  implied.-'^  go  there  will  be  cases  where  all  the  ele- 
ments are  present  for  the  regular  implication  of  a  life  estate 
but  where  a  special  context  wnll  negative  any  such  implication.^^ 
This  is  very  likely  to  be  the  case  where  a  particular  property 
is  given  to  A  for  life  and  then  after  the  death  of  A  that,  to- 
gether with  other  property,  is  given  to  the  testator's  heirs  at 

2s  See    also    Blaekwell   v.    Bull,    1  James,  L.  J.,  Brett,  L.  J.  and  Cotton, 

Keen.   177   (1836)   and  Cockshotl  v.  L.  J.;  Ralph  v.  Carriek  approved  in 

Coc'kshott,  2  Coll.  432  (1846)  where,  Greene   v.    Flood,    15    L.    R.   Jr.   450 

however,  the  implication  ef  the  life  (1885). 

estate  when  the  gift  was  to  part  of  3i  Woodhouse  v.   Spurgeon,  52  L. 

the  testator's  heirs   or   next   of  kin  J.  Ch.  825    (1883)    (gift  to  five  out 

has   been  justified   upon  the  special  of  six  who  would  take  as  next  of  kin 

context   of   the   wills   there  involved  of     testator)  ;     In     re     Springfield, 

according  to   Hall,   V.   C,  in   Ralph  Chamberlin    r.    Springfield,     11894] 

V.  Carriek,  5  Ch.  Div.  984,  994;    11  ?.  Ch.  603. 

Ch.  Div.  873.     See  also  Doughty  v.  32  Blaekwell  v.  Bull,  I  Keen.   177 

Stillwell,  1  Bradf.  (N.  Y.)  300,  311  (1836);    Cockshott    v.   Cockshott,    2 

(s<^h?e) ;  Macy  f.  Sawyer,  66  How.  Coll.    432    (1846)    as    explained    in 

Pr.   (N.   Y.)    381;   Holton  v.  White,  Ralph    v.    Carriek,    5    Ch.    Div.    987 

23  N.  J.  L.  330.  (1877). 

30  5    Ch.    Div.    984,    987    (1877);  33  Isaacson  r.  Van  Goor,  42  L.  .1. 

before  Hall,  V.  C,  11  Ch.  Div.  873  Ch.   N.   S.   193;    Rathbone   i".   Dyck- 

(1879)  ;  before  the  Court  of  Appeal,  man,  3  I'nige  8. 

211 


§206]  ESTATES  [Ch.  XI 

law.  Here  tlie  ineoiigruity  of  A  taking  a  life  estate  in  the  whole 
when  he  is  expressly  given  a  life  estate  in  part  only  is  matched 
against  the  ineongrnity  of  the  heirs  at  law,  who  are  expressly 
excluded  until  the  death  of  A,  taking  the  estate  at  once  on  the 
testator's  death.  It  may  be  safely  affirmed  that  in  the  ordinary 
case  the  incongruity  of  A's  taking  a  life  estate  in  the  whole 
where  he  is  expressly  given  only  a  life  estate  in  part,  is  suffi- 
cient to  prevent  the  implication  of  a  life  estate  in  A.^'^  But 
that  does  not  permit  the  incongruity  of  the  heir  at  law  who 
was  expressly  excluded  until  A's  death,  taking  in  the  meantime. 
Both  incongruities  are  avoided  by  adopting  what  is  known  as 
the  distributive  construction. ^s 

§206.  The  distributive  construction:  Suppose  a  particular 
estate  be  devised  to  A  for  life  and  after  the  death  of  A  the 
same  property  together  with  other  property  is  devised  to  B. 
Suppose  also  that  B  is  the  testator's  sole  heir  at  law.  Here 
then  we  have  the  usual  situation  where,  to  avoid  an  incongruity, 
a  life  estate  Avill  be  implied  in  A.  But  the  fact  that  A  is  already 
expressly  given  a  life  estate  in  part  tends  to  indicate  that  A 
was  to  have  no  further  interest  in  the  whole.-''^  In  short,  there 
is  about  as  much  incongruity  in  A's  being  let  in  for  a  life 
estate  in  the  whole,  wlien  he  is  expressly  given  a  life  estate  in 
part  only,  as  there  is  in  B's  being  let  in  as  heir  at  law  at  once 
on  the  testator's  death  when  he  was  expressly  excluded  until 
the  death  of  A.  In  the  case  put  both  incongruities  may  be 
avoided  by  taking  the  words  "after  A's  death"  in  a  distributive 
sense — that  is,  applying  them  only  to  the  property  in  which  A 
takes  an  express  life  estate.  Thus  B  will  take  immediately  on  the 
testator's  death  excepting  as  to  the  property  given  to  A  for 
life,  and  as  to  that  property  he  will  take  upon  A 's  death.  Whether 
in  the  case  put  a  life  estate  will  be  implied  to  A  or  the  distribu- 
tive construction  adopted  seems  not  to  be  the  subject  of  any 
rule,"'  and  yet  it  is  believed  that  in  order  to  avoid  the  two 

34  Boon  V.  Cornforth,  2  Ves,   Sr.,  man,  3  Paige  8.    Cf.  however,  Bird 

277 ;    Dyer   v.   Dyer,    19   Ves.   612 ;  v.  Hunsdon,  2  Swanst.  342 ;  Macy  v. 

Stevens  v.  Hale,  2  Dr.  &   Sm.  22;  Sawyer,  66  How.  Pr.  (N.  Y.)  381. 
Sympson  v.  Hornsby,  Finch 's  Pree.  35  Post,  §  206. 

Ch.  439 ;   James  v.  Shannon,  Ir.  K.  •   so  Ante,  §  205. 
2  Eq.  118;  White  v.  Green,  1  Ired.  37  Hawkins  on  Wills,  177. 

Eq.   (N,  C.)  45;  Rathbone  v.  Dyck- 

212 


( '11.  XI J  LIPK    i:STATK«  l§'-()(i 

incongiuilies   pix'scnted   a   court    would    iui-liiic   ut    (jnc»*   to   tlif 
distributive  construction. 

Observe,  liowever,  that  tlie  distributive  construction  is  resorted 
to  to  avoid  two  incongruities.     Wlienever,  tlierefore,  the  circum- 
stances are  such  that  these  incongruities  are  not  presented  this 
argument  for  the  adoption  of  the  distril)utive  construction  lo.ses 
its  force.     For  instance,  wlien  the  gift  after  the  death  of  A 
is  not  to  the  heirs  at  law  of  the  testator  and  those  alone,  there 
is  no  incongruity  whatever  in  an  intestacy  until  the  death  of  A. 
Hence  no  life  estate  would  be  implied  in  A  and  the  inclination 
would  be  against  the  adoption  of  the  distributive  construction, 
in  the  absence  of  a  special  context  supporting  it.^s    In  the  same 
way,  if  the  gift  after  the  death  of  A  be  to  the  heirs  at  law  of 
the  testator,  but  an  intestacy,  until  the  death  of  A,  may  be 
avoided    under    well    settled    rules   without    adopting   the    dis- 
tributive construction  or  the  implication  of  a  life  estate  in  A, 
the  argument  from  incongruity  again  fails.     Thus,  if  the  gift 
of  the  whole  property  after  the  death  of  A  is  of  a  mixed  residue 
of  realty  and  personalty,  so  that  under  the  usual  rule  hereafter 
mentioned  •'"  there  will  be  no  intestacy,  but  the  intermediate 
income  in  the  mixed  funds  will  accumulate  and  be  added  to 
the  principal  and  pass  to  B  on  the  death  of  A,  all  argument 
from  incongruity  in  favor  of  the  distributive  construction  is 
removed  and  that  construction,  if  it  be  adopted,  must  be  founded 
upon  the  special  context. ^'^     If,  however,  a  special  context  sup- 
ports the  distributive  construction,  it  has  been  adopted  where 
the  gift  after  the  death  of  A  was  to  a  stranger,  or  to  tlie  heirs 
at  law  of  the  testator  and  a  stranger,  or  to  a  part  only  of  the 
heirs  at  law  or  next  of  kin  of  the  testator.^i     Qf  course,  where 
there  are   explicit  words  postponing  the   gift   until   after  the 
death  of  A  the  distributive  construction  is  defeated.-*^     So  if 

38  Rex  V.  Inhabitants  of  Ring;-  Doe  v.  Brazier,  5  B.  &  A.  64;  Rox 
stead,  9  Barn.  &  Cr.  218;  Aspinall  r.  Inhabitants  of  Ringstead,  9  Boni. 
V.  Petvin,  1  S.  &  St.  544;  Daven-  &  Cr.  218;  Lill  r.  Lill,  23  Beav. 
port  V.  Coltman,  12  Sim.  588;  Att-  446;  Rhodes  t-.  Rhodes,  7  App.  Cas. 
water  v.  Attwater,  18  Beav.  330.  192;    Dyer   r.   Dyer,    19   Ves.    612; 

39  Post,  §  208.  Drew  v.  Killick,  1  De.  G.  &  S.  266. 

40  Lill  V.  LUl,  23  Beav.  446;  Rath-  ••s  See  Ralph  r.  Carrick,  5  Ch.  Div. 
bone  r.  Dyckman,  3  Paige  8.  984;  11  Ch.  Div.  873  (as  commented 

*i  Cook  V.  Gerrard,  1  Saund.  181 ;  on  in  1  Jarman  on  "Wills,  6  ed.  Bige- 
Hutton   V.    Simpson,    2    Vern.    722;        low.  *  505). 

213 


§207]  ESTATES  [Oil.  XI 

there  is  a  distinct  separation  of  the  contingencies  so  that  the 
devise  of  all  the  property  is  expressed  to  be  made  "at  the 
testator's  death  and  after  the  death  of  A,"  the  distributive 
construction  Avould  naturally  be  adopted."*^ 

§207.  Intermediate  income ^^ — Introductory:  In  the  cases 
considered  in  the  two  preceding  sections,  where  a  life  estate 
cannot  be  implied  and  the  distributive  construction  cannot  be 
adopted,  there  is  left  a  gift  to  take  effect  in  fiituro  after  the 
death  of  A  w4th  no  apparent  disposition  in  the  meantime.  What 
then  is  to  become  of  the  rents  and  profits  or  intermediate  in- 
come prior  to  the  time  the  gift  after  the  death  of  A  takes  effect  ? 
The  same  question,  of  course,  arises  in  all  cases  where  there  is 
a  gift  to  take  effect  in  futuro  and  apparently  no  disposition  of 
the  property  in  the  meantime, 

§208.  The  rules  established  by  the  cases:  If  the  subject 
matter  of  the  devise  be  specific  lands  or  specific  personal  prop- 
erty, there  is  an  intestacy  or  the  residuary  devisee  or  legatee 
is  entitled. ^^  If,  however,  a  residue  of  personalty  alone  be 
bequeathed,  the  intermediate  income  must  accumulate  and  be 
added  to  the  principal  and  pass  to  the  one  ultimately  entitled.^** 
This  is  based  upon  the  proper  meaning  of  the  word  "residue." 
Thus,  when  a  devise  or  bequest  is  made  to  A  to  take  effect  in 
futuro  and  then  the  residue  of  real  and  personal  property  is 
given  to  B,  B  will  be  entitled  to  the  intermediate  income  by 

43  See  Eex  v.  Inhabitants  of  Eing-  on  Wills,  6  ed.,  Bigelow,  *  614 ;  Thc- 

stead,  9   Barn.  &  Cr.   218,  227,  per  obald  on  Wills,  7  ed.  182;   Green  v. 

Bailey,  J.  referring  to  a  case  from  Ekins,  2  Atk.  473;   Hodgson  v.  Bec- 

Moore's  Reports.  tive,  1  Hem.  &  M.  376;  10  H.  L.  C, 

4*  This  is  often,  and  always  should  656 ;  Marriott  v.  Turner,  20  Beav. 
be,  explicitly  disposed  of,  as  in  557;  Bullock  v.  Stones,  2  Ves.  Sr. 
Blanehard  v.  Maynard,  103  111.  60;  521  ("all  my  real  and  personal  es- 
Hale  V.  Hale,  125  111.  399;  Waldo  v.  tate")  ;  In  re  Drakeley's  Estate, 
Cummings,  45  111.  421,  and  Rhoads  19  Beav.  395  ("all  my  real  and  per- 
il. Rhoads,  43  111.  239.  sonal  estate");  Studholme  v.  Hodg- 

45  1  Jarman  on  Wills,  6  ed.,  Bige-  son,  3  P.  Wms.  300.  Note  that  Hop- 
low,  614;  Theobald  on  Wills,  7  ed.  kins  v.  Hopkins,  Cas.  temp.  Talb. 
180,  181;  Hopkins  v.  Hopkins,  Cas.  44,  so  far  as  it  held  the  contrary  has 
temp.  Talb.  44,  Hawkins  on  Wills,  been  overruled.  Hodgson  v.  Bective, 
App.  1;  Haughton  v.  Harrison,  2  1  Hem.  &  M.  376;  per  Wood,  V.  C. 
Atk.  329;  Doughty  v.  Stillwell,  1  at  399,  and  10  H.  L.  C,  p.  356,  per 
Bradf.  (N.  Y.)  300,  310.  Westbury  at  p.  666. 

46Fearne,   C.   R.   546;    1   Jarman 

214 


Ch.  XI] 


LIFE   ESTATES 


§208 


reason  of  the  gift  of  the  "residue."  ^'^  Hence  when  a  residue 
itself  of  personal  property  is  devised  to  A  in  futuro  the  inter- 
mediate income  must  accumulate  and  ultimately  pass  to  A.*^ 
On  the  other  hand,  if  the  devise  be  of  a  residue  of  realty  alone, 
the  Englisli  cases  hold  that  there  is  an  intestacy,  and  the  heir 
at  law  is  entitled  to  the  intermediate  rents  and  profits.^"  Here 
obviously  enough  the  courts  refused  to  give  to  the  word  "resi- 
due" the  same  meaning  and  effect  as  was  given  to  it  where 
a  residue  of  personalty  was  involved. 

If,  however,  the  devise  be  of  a  mixed  residue  of  real  and  per- 
sonal property  the  intermediate  income  must,  in  the  absence 
of  a  special  context  requiring  a  different  result,^''  be  accumu- 
lated and  paid  over  to  the  one  ultimately  entitled.  This  rule 
has  been  given  a  wide  application  under  varying  circumstances. 
It  has  been  applied  where  an  express  trust  was  created  and  the 
gift  was  of  the  "residue"  of  real  and  personal  property.''^     It 


*~  Stephens  v.  Stephens,  Cas. 
temp.  Talb.  228,  233;  In  re  Eddels' 
Trusts,  L.  E.  11  Eq.  Cas.  559;  In 
re  Mowlem,  L.  R.  18  Eq.  9;  Harris 
V.  Lloyd,  Turn.  &  R.  310;  /«  re 
Tharel's  Trusts,  13  L.  R.  Ir.  337; 
Wyndham  v.  Wyndham,  3  Bro.  C.  C. 
58;  Guthrie  v.  Walrond,  L.  R.  22 
Ch.  Div.  573;  Sanford  v.  Blake,  45 
N.   J.   Eq.  247. 

■<**  See  cases  cited,  s-upra,  note  46 
and  especially  Green  v.  Elkins,  2  Atk. 
473,  475.  Also  Gibson  v.  Montfort, 
1  Ves.  Sr.  485;  Rogers  v.  Ross,  4 
Johns.  Ch.   (N.  Y.)   388,  399. 

49  Hopkins  v.  Hopkins,  Cas.  temp. 
Talb.  44;  Hawkins  on  Wills,  App. 
1 ;  Hodgson  v.  Bective,  1  Hem.  & 
M.  376;  10  H.  L.  C.  656;  Wade- 
Gery  v.  Handley,  1  Ch.  Div.  653;  3 
Ch.  Div.  374;  Wills  v.  Wills,  1  D.  & 
War.  439;  Davenport  v.  Coltnian,  12 
Sim.  605;  Chambers  v.  Brailsford, 
18  Vcs.  368;  Ec  Williams;  Spencer 
V.  Prighouse,  54  L.  T.  831;  Bullock 
V.  Stones,  2  Ves.  Sr.  521  ("all  my 
real  and  personal  estate")  ;  Duffield 
V.  DuflScld,  1  Dow  &  Clark,  268. 


50  For  instance,  in  In  re  Town- 
send 's  Estate,  Townsend  v.  Town- 
send,  34  Ch.  Div.  357,  the  gift  of 
the  residue  of  real  and  personal 
property  was  upon  trust  to  pay  the 
income  to  W.  S.  T.  for  life  and  then 
to  W.  S.  T.  's  children  in  equal 
shares.  The  gift  of  the  life  estate 
to  W.  S.  T.  was  void  because  his 
wife  witnessed  the  will.  The  gift 
to  the  children  of  W.  S.  T.  could 
not  be  accelerated  because  there 
were  no  children  in  esse.  It  was 
h^d  that  the  income  of  the  real 
estate  would  not  be  accumulated 
but  must  go  in  the  meantime  to  the 
heirs  at  law.  The  preceding  life 
estate  expressly  given  negativcMl 
any  inference  that  the  children  who 
were  to  take  in  futuro  were  to  have 
the  accumulations  of  income. 

•"'iGlanvill  v.  Glanvill,  2  Mcriv. 
38.  In  the  following  eases  there 
was  not  only  a  gift  of  the  residue 
of  real  and  personal  property  and 
a  trusteeship,  but  other  facts  which 
aided  the  theory  that  the  gift  of  the 
residue    in  futuro   was    intended    to 


!15 


208] 


ESTATES 


[CH.XI 


makes  no  difference,  however,  that  there  is  no  trusteeship  but 
a  devise  of  legal  interests  only.^-  The  use  of  the  word  "residue" 
would  seem  to  be  unnecessary  so  long  as  some  form  of  expres- 
sion is  used  which  brings  real  and  personal  property  into  a 
single  blended  fund  of  a  residuary  character."^  On  the  other 
hand,  when  a  testator  begins  to  enumerate  property  specifically 
and  to  designate  both  real  and  personal  property,  but  does  not 
include  them  together  in  a  single  blended  fund,  it  may  be  that, 
wliile  the  income  of  the  personal  property  will  accumulate  be- 
cause the  personal  property  mentioned  is  in  fact  a  residue, 
the  rents  of  the  real  estate  will  go  to  the  heir  at  law  as  intes- 
tate property/"* 

The  rule  applicable  to  a  mixed  residue  of  real  and  personal 
property  has  been  justified  on  the  ground  that  when  the  testator 
devises  in  futuro  a  mixed  or  blended  fund  of  real  and  personal 
property  he  expresses  an  intention  that  the  rule  in  regard  to 
personalty  shall  operate  upon  both.^^     But  obviously  enough 


carry  ai'cumulations.  Gibson  v. 
Montford,  1  Ves.  Sr.  485;  Ackers 
t7.  Phipps,  3  CI.  &  Fin.  665. 

52  Genery  v.  Fitzgerald,  Jac.  468 ; 
Rogers  v.  Ross,  4  Johns.  Ch.  (N. 
Y.)  388. 

53  In  re  Taylor,  Smart  v.  Taylor, 
[1901]  2  Ch.  134  ("all  real  and 
personal  estate  not  otherwise  dis- 
posed of");  Lachlan  v.  Reynolds, 
9  Hare,  796  ("the  interest  of  real 
and  personal  property");  Dough 
erty  v.  Dougherty,  2  Strob.  Eq.  (S. 
C.)  63,  ("all  my  property  both  real 
and  personal");  In  re  Dumble, 
Williams  v.  Murrell,  L.  R.  23  Ch. 
Div.  360,  (realty  and  personalty 
•were  devised  by  different  clauses, 
yet  the  intermediate  income  from 
both  realty  and  personalty  was  ac- 
cumulated). Bullock  V.  Stones,  2 
Ves.  Sr.  521,  so  far  as  it  is  contra 
seems  to  be  overruled.  Ackers  v. 
Phipps,  3  CL  &  Fin.  665,  per  Lord 
Brougham,  p.  697.  In  Lambert  v. 
Harvey,  100  111.  338,  the  devise  was 


of  "all  property  both  real  and  per- 
sonal and  m.ixed. "  The  holding, 
however,  that  there  was  an  intestacy 
as  to  the  real  estate,  so  that  title 
descended  to  the  heir  at  law,  was 
not  contrary  to  the  above  men- 
tioned English  Cases,  because  the 
action  was  ejectment  by  the  resid- 
uary legatee,  and  the  only  question 
was  whether  the  residuary  legatee 
possessed  the  legal  title  to  the  real 
estate  prior  to  the  time  when  the 
springing  future  interest  vested  in 
possession.  The  court  were  not 
called  upon,  and  did  not  pretend 
to  decide  that  the  heir  at  law  did 
not  hold  the  rents  and  profits  in 
trust  to  accumulate  for  the  benefit 
of  the  residuary  legatee. 

54 /«,  re  Drakeley's  Estate,  19 
Beav.  395  (devise  of  "freehold, 
copyhold  and  all  his  real  estate,  and 
bequeathed  all  bis  ready  money, 
securities  for  money,  stock  and  per- 
sonal estate,  etc. "). 

55  Genery  v.  Fitzgerald,  Jac.  468, 


216 


CjI.  XI  I  ^^'F*'    ESTATES 


§209 


this  is  an  arbitrary  assumption,  for  why  may  not  the  inference 
as  well  be  that  the  testator  intends  the  rule  in  regard  to  realty 
to  prevail  both  as  to  realty  and  personalty?  The  reason  for 
the  rule  with  respect  to  the  mixed  residue  of  realty  and  per- 
sonalty must  be  that,  of  the  two  opposing  rules  regarding  a 
residue  of  realty  and  a  residue  of  personalty,  the  latter  is  more 
in  accordance  with  the  natural  and  proper  meaning  of  the 
language  used  than  the  former. 

§  209.     Criticism  of  the  rule  that  the  intermediate  rents  and 
profits  of  a  residue  of  realty  go  to  the  heir  at  law:    Thrcr  r.a 
sons  have  been  urged  for  construing  the  word  "residue"  dif- 
ferently when  applied  to  personalty  alone  and  when  applied  to 
realty  alone. 

First:  It  has  been  said  that  if  the  heir  did  not  take  so  as 
to  be  entitled  to  the  rents  and  profits  until  the  future  event 
happened,  the  freehold  would  be  in  abeyance.^''  This  is  not 
strictly  true  for  the  fee  may  descend  to  the  heir  at  law  and 
his  seisin  should  satisfy,  in  these  times  at  least,  any  surviving 
requirement  of  the  feudal  land  law.  If  it  be  said  that  the  heir 
cannot  take  the  legal  estate  and  at  the  same  time  be  deprived 
of  the  rents  and  profits,  the  answer  is  that  that  is  exactly  what 
Lord  Eldon  did  in  Genery  v.  Fitzgerald;^'  where  a  mixed 
residue  and  realty  and  personalty  was  involved.  Furthermore, 
Chancellor  Walworth  in  Rogers  v.  Ross/'^  met  the  objection  by 
declaring  that  a  court  of  chancery  would  make  the  heir  at  law 
a  constructive  trustee  •''^»  of  the  rents  and  profits  for  the  one 
ultimately  entitled,  or  would  appoint  a  receiver  to  take  the  rents 
and  profits. 

Second:  It  has  been  said  that  the  heir  cannot  be  disinherited 
without  express  words.  Logically  this  assumes  the  very  point 
at  issue,  since  the  question  is,  has  the  testator  expressed  an 
intention  to  give  the  rents  and  profits  to  the  devisee  who  is  to 
take  in  futurof  Practically  this  second  reason  expresses  merely 
a  prejudice  in  favor  of  the  heir  founded  upon  the  recognition 

per  Lord  Eldon;  Ackers  v.  Phipps,  :«  ^^  4  Johns,  Ch.   (N.  Y.)   388,  402. 

CI.  &  Fin.  665,  per  Lord  Brougha.i.,  s.  4   Kent.   Com.    *  387,   14th   ed. ; 

699  Dougherty    v.    Dougherty,    2    Strob. 

5«  Hodgson  V.  Bective,  10  H.  L.  C.       Eq.   (S.  C.)    63,  66  accord. 
656,  per  Lord  Westhury,  p.   664. 

•".lac.  468. 

217 


§  209]     ^     ,  ESTATES  [Ch.  XI 

by  the  English  courts  of  the  prevailing  English  custom  of  per- 
mitting the  eldest  son  to  take  the  ancestor's  or  settlor's  entire 
landed  property.**^  Such  a  prejudice  has  no  place  in  American 
jurisdictions  today.  It  is  entirely  inconsistent  with  our  manners 
and  customs. 

Third:  It  has  been  said  that  prior  to  the  time  when  after- 
acquired  real  estate  could  be  devised,  a  residuary  devise  of  real 
estate  was  looked  upon  as  a  specific  devise  of  real  estate.  Hence 
the  rule  applicable  to  a  specific  devise  of  real  estate  applied  and 
the  rents  and  profits  could  not  be  accumulated.^^  ^  The  rule,  hav- 
ing become  established  on  this  logical  ground,  could  not  be  re- 
garded as  repealed  by  implication  when  after-acquired  real  es- 
tate was  made  devisable  by  the  Wills  Act.^"^  The  premise  in 
this  reasoning  is  defective  because  the  material  question  is  not 
whether  the  devise  was  one  of  specific  real  estate,  but  what 
meaning  shall  be  given  to  the  word  "residue"  when  specific 
real  estate  was  described  as  a  "residue?"  Of  course,  in  an 
American  jurisdiction  where  the  question  comes  up  for  the  first 
time,  long  after  statutes  have  made  after-acquired  real  estate 
devisable,  there  is  the  same  opportunity  for  ignoring  the  rule 
of  the  English  cases  based  upon  the  fact  that  after-acquired 
real  estate  was  not  devisable  that  there  is  where  the  question 
is  whether  a  lapsed  devise  falls  into  the  residue  or  goes  to  the 
heir  at  law.^-^ 

The  unsatisfactory  character  of  the  rule  that  the  heir  at  law 
was  entitled  to  the  intermediate  income  of  a  residue  of  realty 

fio  Hodgson  V.  Bective,  1  Hem.  &  that  a  lapsed  devise  of  real  estate 
M.  376,  per  Wood,  V.  C,  p.  397:  went  to  the  residuary  devisee  and 
' '  The  rule  which  gives  the  interme-  not  to  the  heir  at  law  as  a  result  of 
diate  rents  to  the  heir  is  the  arti-  the  fact  that  after  acquired  real 
ficial  result  of  our  peculiar  doctrine  estate  might  be  devised  in  the  same 
in  this  country  in  favor  of  the  heir 's  way  as  after  acquired  personal  prop- 
position.  ' '  erty.     Molineaux  v.  Raynolds,  55  N. 

ci  Hodgson  V.  Bective,  1  Hem.  &  J.  Eq.   187;    Thayer  v.  Wellington, 

M.   376,   per  Wood,  V.   C,  p.   396;  9  Allen  (Mass.)  283,  295;  Reeves  v. 

10  H.  L.  C.  656,  per  Lord  Cranworth,  Reeves,  5  Lea   (Tenn.)    653;   Cruik- 

p.  669.  shank   v.  Home   for  the  Friendless, 

02  Hodgson  V.  Bective,  1  Hem.  &  113  N.  Y.  337,  354.     Contra,  Mas- 

M.  376,  per  Wood,  V.  C,  p.  396.  sey  's  Appeal,  88  Pa.  470 ;  Rizer  v. 

63  In  the  following  cases  it  was  held  Perry,  58  Md.  112,  134. 

218 


Ch.  xr 


LIFE   ESTATES 


§209 


alone  and  the  weakness  of  the  reasons  upon  which  that  rule 
is  based,  have  been  pointed  out  by  eminent  judges.*^* 


«<  In  Gibson  v.  Montford,  1  Ves. 
Sr.  485,  490,  Lord  Hardwicke  said: 
"It  is  pretty  hard  to  say,  that  in 
any  case  where  one  devises  all  the 
rest  and  residue  of  his  real  estate, 
the  heir  should  be  enabled  to  claim 
anything  out  of  it;  for  how  can  he 
claim  or  take  these  intermediate 
profits?  He  must  claim  [them]  as 
part  of  the  real  estate  undisposed 
[of]  and  not  by  any  particular 
trust. ' '  This  passage  Chancellor 
Walworth  quotes  with  approval  in 
Rogers  v.  Ross,  4  Johns,  Ch.  (N. 
Y.)  488,  500.  In  Ackers  v.  Phipps, 
3  CI.  &  Fin.  665,  691,  Lord  Brough- 
am, referring  to  the  same   passage 


from  Lord  Hardwicke,  says:  "It 
does  seem  difficult  to  understan'd  a 
residuary  devise,  even  when  confined 
to  real  estate,  in  any  other  than  this 
general  and  absolute  sense.  For 
what  can  it  mean,  but  to  give  away 
from  the  heir  whatever  had  not  be- 
fore been  given  away  from  him?" 
Again  (p.  699),  he  says,  after  ap- 
proving the  rule  with  respect  to  a 
mixed  residue  of  real  and  personal 
property:  "But  I  am  also  of  the 
opinion  that  the  gift  of  a  real  resi- 
due, without  blending  it  with  a  per- 
sonal residue,  would  of  itself,  have 
the  same  effect  upon  another  ground, 
namely  the  meaning  of  'residue'." 


219 


CHAPTER  XII. 

JOINT  INTERESTS. 

§  210.  Of  real  estate — Joint  tenancies  other  than  those  in 
trustees  and  executors — The  Statutes:  At  common  law  a  con- 
veyance inter  viuos  or  by  devise  to  several  created  prima  facie 
a  joint  tenancy.  In  1821  ^  the  right  of  survivorship  between 
joint  tenants  was  abolished  by  language  broad  enough  to  apply 
to  real  property  as  well  as  personal.  In  1827,2  however,  the 
present  Section  5  of  the  Act  on  Conveyances  was  passed,  which 
reads  as  follows:  "No  estate  in  joint  tenancy,  in  any  lands, 
tenements  or  hereditaments,  shall  be  held  or  claimed  under  any 
grant,  devise,  or  conveyance,  whatsoever,  heretofore  or  here- 
after made,  other  than  to  executors  and  trustees,  unless  the 
premises  therein  mentioned,  shall  expressly  be  thereby  declared 
to  pass,  not  in  tenancy  in  common,  but  in  joint  tenancy;  and 
every  such  estate,  other  than  to  executors  and  trustees,  (unless 
otherwise  expressly  declared  as  aforesaid)  shall  be  deemed  to 
be  in  tenancy  in  common."  Since  the  passage  of  this  act, 
Section  2  of  the  Act  of  1821,  which  has  continued  in  the  various 
revisions  of  the  statutes,  has  been  held  not  to  apply  to  real 
estate.^  The  re-enactment  of  the  Act  of  1821  with  an  amend- 
ment relating  to  bank  deposits  would  not,  it  is  believed,  operate 
to  abolish  the  right  of  survivorship  in  joint  tenants  of  real 
estate.  That  part  of  the  Act  of  1917,  which  was  merely  a  re- 
enactment  of  Sec.  2  of  the  Act  of  1821,  would  be  construed, 
as  it  had  been  in  connection  with  the  Act  of  1827,  not  to  apply 
to  real  estate. 

§211.  Construction:  Under  the  Act  of  1827  (now  Sec.  5 
of  the  Act  on  Conveyances),  it  is  important  to  determine  what 
language  is  sufficient  to  enable  one  to  find  an  expressed  intent 
to  create  a  joint  tenancy.     The  exact  words  of  the  statute  "not 

1  Gale's  111.  Stats.   514,  rA5,   S12;  1815,  Ch.   24,   S5;    R.  S.   1874,  Cli. 

R.  S.  1845,  Ch.  56,  §  1;  R-  S.  1874,  ;;0,  §5. 

Ch.  76,  §  1.  ■'  Mette  v.  Fcltgen,  148  111.  ;557. 

2 Gale's  111.  Stats.  149,  §5;  R.  S. 

220 


Ch.  XllJ  JOINT    INTERESTS  I  §-11 

in  tenancy  in  common,  but  in  joint  tenancy"  are  clearly  suffi- 
cient for  the  creation  of  a  joint  tenancy.''  It  has  been  said  a 
number  of  times  by  our  Supreme  Court  -'  and  actually  held  in 
at  least  one  case  *'  that  it  is  not  necessary  to  use  the  exact  words 
of  the  statute  in  order  to  create  a  joint  tenancy.  It  is  only 
necessary  that  some  words  be  used  which  show  a  clear  intent  to 
create  such  interests.  Nevertheless,  it  should  be  observed  that 
it  requires  a  very  clear  expression  of  intent  to  create  a  joint 
tenancy.  The  inclination  of  the  court  has  been  entirely  against 
its  creation. 

In  Mitt  el  v.  Karl,'  the  deed  ran  to  a  husband  and  wife  and 
"the  survivor  of  them,  in  his  or  her  own  right."  ^It  was  held 
that  this  did  not  confer  an  estate  by  the  entirety.  The  court 
said:  "The  declaration  which  the  statute  requires  to  establish 
the  estate  [i.e.,  the  exact  words  of  the  statute  'not  in  tenancy 
in  common,  but  in  joint  tenancy']  is  nowhere  found  in  the 
deed,  and  in  the  absence  of  such  a  declaration  we  are  inclined 
to  hold  that  the  estate  was  not  created."  There  could  be  no 
tenancy  in  common  because  of  the  clause  concerning  survivor- 
ship. The  court,  therefore,  seemed  driven  to  the  construction 
that  the  husband  and  wife  took  life  estates  with  a  contingent 
remainder  over  to  the  survivor.  Later  dicta  and  at  least  one 
decision  «  indicate  that  the  court  laid  down  too  strict  a  rule 
when  it  intimated  that,  in  order  to  create  a  joint  tenancy,  the 
precise  language  of  the  statute  must  be  used.  With  the  more 
liberal  view  of  the  later  cases  that  any  language  is  sufficient 
which  shows  a  clear  intention  to  create  a  joint  tenancy,  it  would 
seem  that  the  language  of  the  deed  in  this  case  might  be  held 
to  have  created  a  joint  tenancy,  rather  than  life  estates  with 
contingent  remainder  subject  to  be  destroyed  by  the  action  of 
the  life  tenants  and  reversioner. 

In  Slater  v.  Gruger,^  the  deed  referred  to  the  husband  and 
wife  "and  the  survivor  of  them,  in  his  or  her  own  right,"  as 
party  of  the  second  part.  The  granting  clause  was  "unto  said 
party  of  the  second  part,  their  heirs  and  assigns  forever." 
Following  the  description  of  the  property  granted,   the   deed 

4j^^  c  Slater  v.  Gniger,  16.1  111.  -i-^. 

5  Cover    V.    James,    217    III.    309,  '1.33  III.  65. 

315;  Gaunt  v.  Stevens,  2-11  111.  542,  >^  Supra,  notes  5  and  6. 

.^48.  ^'165   III.   329. 

221 


§  212]  ESTATES  [Ch.  XII 

declared  that  the  "  conveyance  herein  is  made  to  said  grantees 
in  joint  tenancy"  and  the  hahcndum  was  "unto  the  said  party 
of  the  second  part,  their  heirs  and  assigns  forever."  It  was  held 
tliat  a  joint  tenancy  had  been  created.  The  court  made  it  clear 
that  any  words  indicating  an  intent  to  create  a  joint  tenancy 
were  sufficient,  and  that  it  was  not  necessary  to  follow  the  exact 
words  of  the  statute. 

In  Mustain  v.  Gardner, ^'^  there  was  a  devise  to  the  testator's 
daughter  and  his  wife  "jointly"  of  certain  described  property 
"to  them  and  their  heirs  and  assigns  forever."  This  was  held 
to  create  a  tenancy  in  common  and  not  a  joint  tenancy.  The 
mere  use  of  the  word  "jointly"  was  not  sufficient  to  indicate 
a  joint  tenancy. 

In  Cover  v.  James, ^^  the  deed  ran  to  a  husband  and  wife  and 
after  the  description  of  the  property  and  the  release  of  the 
homestead,  there  appeared  this  clause :  "  in  case  of  the  death  of 
either  A.  Ford  or  Bessie  Cover,  the  other  to  have  the  whole  of 
said  property  without  litigation."  It  was  held  that  the  husband 
and  w^fe  took  life  estates  with  contingent  remainder  to  the 
survivor.  Reliance  may  have  been  placed  upon  the  phrase  "in 
case  of  the  death"  as  indicating  a  separate  gift  in  any  event 
upon  the  death  of  either. ^^  The  court,  however,  seems  to  have 
relied  very  largely  upon  the  result  reached  in  Mittel  v.  Karl.^^ 

In  Gaunt  v.  Stevens,^^  the  limitations  were  by  will  to  the 
testator's  wife  and  two  named  daughters  "and  to  the  survivor 
or  survivors  of  them,  share  and  share  alike."  It  was  held  that 
a  tenancy  in  common  and  not  a  joint  tenancy  was  created.  The 
fact  that  a  devise  was  involved  made  it  possible  to  construe  ' '  sur- 
vivor or  survivors  of  them"  as  meaning  those  Avho  survived  the 
testator,  and  "share  and  share  alike"  as  giving  to  those  who  sur- 
vived the  testator  a  tenancy  in  common  in  fee.  This  course  the 
court  regarded  as  required  by  the  settled  disinclination  to  find 
a  joint  tenancy,  if  any  other  explanation  of  the  language  used 
was  permissible. 

§212.  Joint  tenancies  in  executors  and  trustees:  The  Act 
of  1821,^^  Avhich  in  Sec.  1  permitted  the  partition  of  joint  ten- 
ancies and  then  provided  in  Sec.  2  that  if  no  partition  was 

10  203  111.  284.  13  133  111.  65. 

11  217  111.  309.  14  241  111.  542. 

1-' J«fe,  §§  162,  163.  15  Gale's  111.  Stats.  514,  515. 

222 


ClI.  XII]  JOINT    INTERESTS  [§214 

made  there  should  be  no  right  of  survivursliip,  by  the  terms  of 
Sec.  1,  applied  only  to  joint  tenants  "in  their  own  right,  or  in 
the  right  of  their  wives."  It  has  been  suggested  tliat  it,  there- 
fore, did  not  apply  to  joint  estates  held  by  executors  and  trustees 
in  the  right  of  another.  i«  The  Act  of  1827  "  made  it  clear  that 
limitations  of  real  estate  to  executors  or  trustees  were  subject  to 
tlie  common  law  rule  that  a  joint  tenancy  was  prima  facie  created 
in  such  executors  or  trustees.  Since  no  right  of  survivorship  was 
ever  taken  away,  such  right  continued  as  an  attribute  to  tiie 
joint  tenancies  of  executors  and  trustees.  The  fact  that  the  Act 
of  1827  was  construed  as  providing  for  the  continuance  of  the 
right  of  survivorship  where  a  joint  tenancy  was  created  pursu- 
ant to  this  act  in  real  estate,  confirms  the  view  that  trustees  and 
executors  who  take  as  joint  tenants  do  so  with  the  common  law 
right  of  survivorship. ^8 

§  213.  Estates  by  the  entirety  in  husband  and  wife :  Before 
the  Married  Women's  Act  of  1861,^'^  a  conveyance  to  a  husband 
and  wife  in  fee  created  in  both,  estates  by  the  entirety.^*^  Each 
had  a  right  to  the  whole  property  upon  surviving  the  other,  and 
this  right  of  survivorsliip  neither  one  alone  could  extinguish  by 
any  act  during  the  marriage.  Since  that  act,  they  are  tenants 
in  common.-^  It  has  yet  to  be  decided  whether  an  estate  by  the 
entirety  in  the  husband  and  wife  can  be  created  if  an  intention 
to  do  so  is  full}'  expressed. 

§214.  Tenancy  in  common:  Since  1827  a  transfer  inter 
vivos  or  by  devise  has,  in  this  state,  been  sufficient  prima  facie 
to  make  the  grantees  tenants  in  common.  This  rule  applies  regu- 
larly where  there  is  a  conveyance  or  devise  to  named  persons, 
or  to  a  class  of  persons.  In  cases,  however,  where  the  convey- 
ance is  to  a  named  person  or  persons,  together  with  a  class  of 
persons,  such  as  a  conveyance  to  A  and  his  children,  there  has 
been  a  disposition  by  our  Supreme  Court  to  permit  a  slight 
additional  special  context  to  give  rise  to  the  inference  that  "chil- 

leMette  v.  Feltgen,  148  111.  ?.57,  is  Laws  111.  1861,  p.  143. 

S63;  Gaunt  v.  Stevens,  241  111.  542,  2'^  Mariner    v.    Saunders,    5    Gilm. 

547.  (111.)  113;  Lux  v.  Hoff,  47  111.  425. 

i^Now  R.  S.  1874,  Ch.  30,  §  5.  '■ii  Cooper    v.    Cooper,    76    111.    57, 

isReiehert  v.  Mo.  &  111.  Coal  Co.,  64;  Mittel  v.  Karl,  133  111.  65,  68. 

231  111.  238,  244. 

223 


^215] 


ESTATES 


[Ch.  XII 


dren"  was  used  as  an  informal  word  of  limitation  so  that  A  alone 
took  the  fee.-- 

§215.  In  personal  property:  Since  the  Act  of  1821  and 
until  its  recent  amendment  in  1917,  the  right  of  the  survivor 
or  survivors  of  joint  tenants  to  take  the  whole  has  been  abol- 
ished.-^ The  amendment  of  1917-^  made  a  special  exception  in 
the  case  of  bank  deposits  if  certain  formalities  were  observed. 
It  has  been  suggested,  however,  that  the  Act  of  1821,  by  the 
terms  of  Sec.  1,  applied  only  to  joint  tenants  ''in  their  own  right 
or  in  the  right  of  their  wuves,"  and  hence  Sec.  2  did  not  apply 
to  joint  interests  in  trustees  or  executors,  or  joint  tenants  hold- 
ing in  the  right  of  another.-''  See.  1  of  the  Act  of  1821  appears 
lo  have  been  dropped  out  of  the  Revised  Statutes  of  1845  or 
else  it  must  be  regarded  as  having  been  rewritten  and  incor- 
porated into  Sec.  1  of  Ch,  79  on  Partition,  and  in  Sec.  1  of  Ch. 
106  of  the  Revised  Statutes  of  1874  on  Partition.  Nevertheless, 
it  may  be  assumed  in  accordance  with  the  rule  of  construction 
laid  down  in  Sec.  2,  Ch.  131  of  R.  S.  1874  that  Sec.  2  of  the  Act 
of  1821  appearing  as  Sec.  1  of  Ch.  56,  R.  S.  1845,  and  Sec.  1,  Ch. 
76,  R.  S.  1874  will  be  construed  as  a  mere  continuation  of  the 
original  statute  with  the  same  construction  which  it  originally 
had.-^  By  this  process  it  will  still  be  ineffective  to  eliminate 
the  common  law  right  of  survivorship  in  the  case  of  joint  tenan- 
cies of  personal  property  in  executors  and  trustees  and  those 
holding  in  the  right  of  another. 


22  See  ante,  §  169.  As  to  gifts  to 
A  and  "his  descendants"  see  ante, 
§  196.  As  to  gifts  of  personalty  to 
"A  and  the  heirs  of  his  body,"  or 
to  "A  and  the  issue  of  his  body" 
see  ante,  §§  199,  200. 

23  Hay  V.  Bennett,  153  111.  271. 
But  see  Erwin  v.  Felter,  283  111.  36, 


\\hore  the  above  rule  and  the  statute 
seems  to  have  been  entirely  over- 
looked. 

24  Laws   1917,  p.  557. 

25  Mette  V.  Feltgen,  148  El.  357, 
363. 

26  Id,,  367. 


224 


BOOK  IV. 

FUTURE  INTERESTS. 

CHAPTER  XIII. 
RIGHTS  OF  ENTRY  FOR  CONDITION  BROKEN. 

TITLE  I. 

ESTATES  WHICH  MAY  BE  SUB.TECT  TO  A  CONDITION 
SUBSEQUENT. 

§216.  Fee  simple:  A  fee  simple  estate  may  be  made  sub- 
ject to  forfeiture  by  tlie  breach  of  a  condition  subsequent.  This, 
it  is  believed,  has  been  the  law  from  the  earliest  times,^  and  this 
liberty  has  been  fully  sustained  in  this  state  by  Gray  v.  Chicago, 
M.  &  St.  P.  Ry.-  There  were,  in  that  case,  two  conveyances  in 
fee  simple  executed  in  favor  of  the  railroad  subject  to  an  express 
condition  subsequent  that  the  land  conveyed  should  revert  to 
the  grantors  upon  the  failure  of  the  railroad  to  stop  at  a  certain 
station  all  its  accommodation  trains  to  take  and  leave  passengers. 
There  was  a  breach  of  the  condition  and  the  grantor  in  one 
deed  and  the  devisee  of  the  grantor  in  the  other  brought  eject- 
ment. A  verdict  was  directed  for  the  defendant  and  judgment 
was  rendered  on  this  verdict.  This  was  reversed.  The  only 
questions  discussed,  were  the  construction  of  the  condition  and 
its  legality.^ 

§  217.  Mortgages:  *  It  seems  worth  observing  that  a  mort- 
gage, so  often  considered  as  a  conveyance  wholly  in  a  class  by 

1  Gray's    Kule    against    Perpetu-  111.    294;     Green    v.    Old    People's 

ities,    §§12,   30.     How    far   it   may  Home,  269  111.  134;  Latham  v.  I.  C. 

be  limited  by  the  rule  against  per-  K.  R.  Co.,  253  111.  93.     An  equitable 

petuities    or    public    policy    against  interest   in   personalty   may   also   be 

forfeitures    for    alienation    will    be  subject   to   a   condition   subsequent: 

considered  j)ost,  §§602,  711  ct  seq.,  Green  v.  Old  People's  Home,  supra. 

749  it  seq.  ^  Dcdwation :    The    nature    of   the 

-'189  111.400.    See  also  in  accord :  interest    of    the    dedicator    upon    a 

Wakefield   v.   Van   Tassell,   202   111.  statutory  dedication  will  be  consid- 

41;  Wilson  v.  Gait,  18  111.  431,  437;  ered  post,  §§  284,  285. 

Sherman  v.  Town  of  Jefferson,  274  *  It   is   not    j.roposed   here   to   in- 
Kales  Fut.  Int. — 15                           '^'^S 


r^-ii] 


FUTl'RE    INTERESTS 


[Ch.  xm 


itself,  is,  fundamentally,  merely  the  transfer  of  a  fee  simple,  sub- 
ject to  a  eondition  subsequent.''  If  the  debt  be  paid  according 
to  the  terms  of  the  condition  the  mortgagee's  fee  is  subject  to  for- 
feiture. The  mortgagor  has  a  right  of  entry  and  if  already  in 
possession  he  has  a  legal  title  in  fee  simple  at  once.  From  this 
it  followed  that  the  mortgagee  could  maintain  ejectment  and  was, 
in  the  absence  of  any  stipulation  to  the  contrary,  entitled  to 
possession  before  condition  broken.  Such,  indeed,  was  the 
doctrine  of  the  English  cases,"  and  in  one  of  our  early  cases  " 
there  is  a  dictum  that  such  is  the  rule  in  this  state. 

It  is  now,  however,  settled  in  this  state  that  the  mortgagee 
cannot  maintain  ejectment  until  after  condition  broken.^  This 
must  rest  upon  the  ground  that  equity,  regarding  the  mortgagor 
as  the  real  owner,  would  enjoin  an  action  for  possession  by  the 
mortgagee  until  the  non-paj^ment  of  the  sum  secured.  The  fact 
that  there  has  been  no  such  failure  to  pay  becomes,  therefore,  an 
equitable  defence  w^hich  a  court  of  law  in  a  suit  for  possession, 
recognizes  and  admits  under  the  general  issue  pleaded.**  The 
burden  of  proof,  therefore,  is  upon  the  defendant — the  mort- 
gagor— to  show  that  there  has  been  no  breach  of  the  condition. 
This  is  the  rule  which  the  Supreme  Court  recognizes. ^^  After 
default  in  the  payment  of  the  amount  due  equity  will  no  longer 
enjoin  a  suit  for  ejectment,  so  that  the  basis  of  an  equitable 
defence  is  lacking  and  the  ejectment  may  proceed. ^^     There  is. 


dicate  how  far  the  Illinois  Courts 
have  modified  the  original  view  of 
the  character  of  a  mortgage,  but 
only  to  call  attention  to  some  of 
the  points  in  which  the  logical  re- 
sults of  that  original  view  have 
been  retained,  and  to  explain  some 
departures  in  a  way  to  cause  the 
least  disturbance  to  the  law  of 
future  interests. 

5  Co.  Lit.  ch.  5,  §332,  note  (1); 
Butler  and  Hargrave's  notes,  1st 
American  ed.  from  19th  London  ed. 

'•  See  the  exposition  of  the  Eng- 
lish doctrine  to  be  found  in  Bar- 
rett V.  Hinckley,  124  111.  32,  41  et 
seq.,  and  Kransz  v.  Uedelhofen, 
193  111.  477,  484. 


7  Carroll  v.  Ballance,  26  111.  9, 
17. 

8  Kransz  v.  Uedelhofen,  193  111. 
477. 

9  It  would  seem  to  follow,  also, 
that  before  default  the  mortgagor 
might  maintain  ejectment  against 
the  mortgagee,  on  the  ground  that, 
to  the  mortgagee's  defence  of  legal 
title,  the  mortgagor  would  have  an 
equitable  reply,  founded  upon  the 
fact  that  equity  would  enjoin  the 
mortagce  from  setting  up  the  legal 
title  l)ofore  default. 

lorinlon   v.   Clark,   118   111.   32. 

11  Delahay  v.  Clement,  3  Scam. 
(111.)  201,  203  (semble) ;  Kruse  v. 
Scripps,  11  111.  98;  Vansant  v.  All- 


226 


ch.xihj 


CONDITIONAL    ESTATKS 


S  2VJ 


tlien,  110  iu^curacy  in  six'uking  of  the  default  of  the  mortgagor 
as  if  it  operated  to  forfeit  a  legal  fee  siini))*'  in  the  mortgagor 
and  invest  the  ni()rtf«-a.<;ee  with  it.^- 

$5  218.  Terms  for  years:  A  term  for  years  is  the  interest, 
most  commonly  subject  to  a  condition  subsequent.  The  for- 
feiture of  leases  for  nonpayment  of  rent  or  for  the  breach  of 
covenants  in  the  lease,  wliich  are  made  conditions  by  express 
stipulation,  are  so  common  as  to  require  no  citation  of  authori- 
ties regarding  tlieir  validity  in  general.^  =' 

TITLE  II. 

CONCERNING    THE    EXISTENCE   AND   CHARACTER   OF 

THE    CONDITIONS. 

Topic  1. 

Conditions  Created  by  Act  of  the  Parties. 

;$  219.     What  words  are  effective  to  create  a  right  of  entry 

for  condition  broken — Effect  of  a  re-entry  clause:    The  clearest 

wav  to  make  a  conditional  fee  is  to  use  words  of  condition  and 


nion,  2:5  111.  .*?0  (scmhlc)  ;  Carroll 
V.  Ballance,  26  111.  9;  Fisher  v.  Mii- 
iiiine,  94  111.  1^28;  Esker  v.  Heffer- 
iian,  159  111.  38;  Ware  v.  Schiiitz, 
190  111.  189. 

In  Kruse  v.  Scripps,  »upra,  and 
Carroll  v.  Ballance,  supra,  it  was 
held  that  no  notice  to  quit  was 
necessary  before  the  mortgagee 
liroiiglit  ojectment.  Tliis  \vas  i)ut 
on  the  ground  that  the  mortgagor 
had  no  estate  at  all.  It  is  believed 
that  this  is  strictly  correct.  The 
mortgagor 's  possession  is  protected 
by  equity  merely,  and  by  the  privi- 
lege which  the  mortgagor  has  to 
urge  an  equitable  defence  to  the 
mortgagee 's  action  of  ejectment  at 
law.  The  moment  that  bar  is  re- 
moved the  right  to  possession  of  the 
mortgagee  which  has  all  along  ex- 
isted becomes  fully  effective.  This 
must  have  been  the  view  of  the 
court  because  it  not  only  said  that 
tlie  mortgagor  had  no  tenancy,  but 
in  Carroll   r.  Ballance,  snpra,  it   de- 


clared that  the  mortgagee  had  a 
legal  right  to  maintain  ejectment 
before  default. 

Such  a  view  is  not  inconsistent 
wdth  the  rule  that  the  mortgagor's 
]iossession  beomes  adverse  only  upon 
default,  since  the  cause  of  action 
liy  the  mortgagee  for  ])Ossessiou  can- 
not be  said  to  arise,  in  the  meaning 
of  the  Limitation  Acts,  so  long  as 
the  mortgagor  has  a  good  defense. 

After  a  default  it  is  clear  that  the 
mortgagor  cannot  maintain  an  eject- 
ment against  the  mortgagee  because 
the  equitable  reply  (supra,  note  9) 
of  the  mortgagor  is  gone:  Holt  v. 
Rees,  44  111.  30;  Kilgour  v.  Gock- 
ley,  83  111.  109;  Oldham  r.  Pfleger, 
84  111.  102. 

1-  If  this  were  the  correct  view, 
the  mortgagee  would  have  a  shift- 
ing future  interest  by  deed.  Post, 
SS443  et  scq.  Sec  also  Forlouf  v. 
Bowlin,  29  111.  App.  471. 

'-See  cases  cited  and  dealt  with, 
p<Kst.  SS233-2.;9,  241,  2-l.')-2.i3. 


OO' 


§220] 


FUTURE   INTERESTS 


[Ch.  XIII 


also  insert  a  re-entry  clause. i-*  When  the  conveyance  is  for 
certain  express  purposes  or  upon  a  motive  expressed,  or  upon  a 
certain  consideration,  with  a  re-entry  clause,  or  if  there  is  a 
covenant  with  a  re-entry  clause  the  estate  is  upon  a  condition 
subsequent.  ^^  Not  infrequently  there  is  created  both  a  covenant 
by  the  grantee  and  a  condition  subsequent,  and  the  grantor  may 
proceed  by  way  of  enforcing  the  covenant  or  declaring  a  for- 
feiture. Sometimes,  however,  a  condition  subsequent,  and  that 
alone,  is  created,  so  that  if  the  breach  of  the  condition  be  waived 
there  can  be  no  claim  at  all  for  damages  which  may  have  oc- 
curred prior  to  the  waiver  of  the  breach  of  condition. ^"^ 

§  220.    Where  the  conveyance  is  for  certain  express  pur- 
poses, or  upon  a  motive  expressed,  ^"^  or  upon  a  certain  con- 


sideration 


or 


upon 

14  Gray  v.  C,  M.  &  St.  P.  Ky.  Co., 
189  111.  400;  Sanitary  Dist.  v.  Chi- 
cago Title  &  Trust  Co.,  278  111.  529 ; 
Trustees  of  Union  College  v.  City  of 
New  York,  73  N.  Y.  Supp.  51 ;  Moss 
V.  Chappell,  126  Ga.  197;  Minard  v. 
Delaware,  L.  &  W.  R.  Co.,  139  Fed. 
60;  Brown  v.  Tilley,  25  E.  I.  579; 
Austin  V.  Cambridge  Port  Parish, 
21  Pick.  (Mass.)  215;  Houston  & 
T.  C.  R.  Co.  V.  Ennis-Calvert  Co., 
23  Tex.  Civ.  App.  441;  Hoyt  v. 
Ketcham,  54  Conn.  60. 

15  Atty.  Gen.  v.  Merrimack  Manu- 
facturing Co.,  80  Mass.  586;  Wood- 
ruff V.  Water  Power  Company,  10 
N.  J.  Eq.  489;  Hamel  v.  Minneap 
olis,  St.  P.  &  S.  S.  M.  Ry.,  97  Minn 
334;  Sherman  v.  Town  of  Jefferson 
274  111.  294;  Hart  v.  Lake,  273  111 
60;  Green  v.  Old  People's  Home,  269 
111.  134;  Latham  v.  I.  C.  R.  R.  Co. 
253  111.  93;  Springfield,  etc.  Trac 
tion  Co.  V.  Warrick,  249  111.  470. 

16  Sanitary  Dist.  v.  Chicago  Title 
&  Trust  Co.,  278  111.  529.  As  be- 
tween holding  a  condition  to  be  pre- 
cedent to  the  transfer  of  title,  or 
subsequent,  divesting  a  title  which 
has  passed,  the  courts  lean  toward 
the   latter   construction:     Phillips  v. 


the     express     agreement, 


"   19 


or 


Gannon,  246  111.  98;  Nowak  v.  Dom- 
browski,  267  111.  103. 

1"  Tinker  v.  Forbes,  136  111.  221, 
239;  Thornton  v.  Natchez,  88  Miss. 
1;  Id.,  129  Fed.  84;  Barker  v.  Bar- 
rons,  138  Mass.  578;  Long  v.  Moore, 
19  Tex.  Civ.  App.  363;  Faith  v. 
Bowles,  86  Md.  13;  Field  v.  Provi- 
dence, 17  R.  I.  803;  Horner  v.  C, 
M.  &  St.  P.  Ry.  Co.,  38  Wis.  105, 
175;  Rawson  v.  School  District,  7 
Allen  (Mass.)  125.  See  also  Greene 
V.  O'Connor,  18  R.  I.  56;  Avery  v. 
U.  S.,  104  Fed.  711;  Kilpatrick  v. 
Mayor,  81  Md.  179;  Collins  v. 
Brackett,  34  Minn.  339.  In  O 'Don- 
nell  V.  Robson,  239  111.  634,  the 
court  assumed  the  existence  of  a 
condition  subsequent  only  for  the 
purposes  of  argument. 

isLetchworth  v.  Vaughan,  77 
Ark.  305  (in  consideration  of  build- 
ing a  railroad  to  be  completed  by  a 
certain  date).  See,  however,  contra, 
Close  V.  Burlington,  etc.,  R.  R.  Co., 
64  la.  149  (in  consideration  of  es- 
tablishing a  railroad  station,  held  to 
create  an  estate  upon  condition)  ; 
Indianapolis,  etc.  R.  R.  Co.  v.  Hood, 
66  Ind.  580  (same  sort  of  case). 

19  Hawley  v.  Kafitz,  148  Cal.  393 


228 


Ch.  XIII]  CONDITIONAL   ESTATES  [§  220 

"provided,  however,  the  grantee  shall  do"  thus  and  so,-"  and 
there  is  no  re-entry  clause:  Here  the  cases  are  overwhelm- 
ingly in  favor  of  the  proposition  that  the  estate  is  not  upon 
condition. 

Nevertheless,  upon  a  conveyance  to  school  trustees  expressed 
to  be  for  school  purposes,  our  Supreme  Court  seems  to  have 
admitted  that  if  the  school  trustees  sold  the  land  or  used  it  for 
other  than  school  purposes  the  grantor  might  declare  a  for- 
feiture of  the  estate  conveyed. 21  So  where  a  lease  of  premises 
was  made  "to  be  occupied  for  a  grocery-  store  and  for  no  other 
purpose  whatever,"  it  Avas  held  that  the  failure  to  so  use  the 
store  was  the  breach  of  a  condition  subsequent. -2  On  the  other 
hand,  where  a  deed  was  made  to  supervisors  "for  court  house 
and  other  county  buildings,"  no  condition  was  created. -^  So, 
where  the  deed  ran  to  commissioners  in  consideration  of  the 
location  of  the  county  seat  having  been  made  upon  the  granted 
premises,  it  was  pretty  clear  that  there  was  no  condition. 2-*  So, 
too,  when  the  conveyance  was  for  church  purposes  and  a  pro- 
viso was  added  that  if  it  were  not  used  for  such  purposes  the 
grantor  was  to  be  paid  two  hundred  dollars,  it  is  clear  that 
there  was  no  condition  of  forfeiture  of  the  estate.-^ 

(upon     the    express     agreement    to  effect.     The  conveyance  of  lots  was 

build  a  house  to  cost  a  certain  sum)  ;  there    made    upon    condition    that    a 

Mackey  v.  Kerwin,  222  111.  371;  No-  strip  twenty  feet  wide  at  the  front 

Tvak   V.    Dombrowski,   267    111.    103;  of  each  lot  should   be  used  ouly  as 

O'Neil  V.  Caples,  257  111.  528.  a  front  yard  and  not  built  upon  and 

20  King  V.  Norfolk  &  Western  Ky.  in  case  of  a  breach  of  this  stipula- 
Co.,  99  Va.  625;  Cassidy  v.  Mason,  tion  the  grantee  was  to  pay  a  pen- 
171  Mass.  507;  Village  of  Ashland  alty  of  ten  dollars  per  day.  The 
V.  Greiner,  58  Ohio  67.  Court   intimated    (p.   579)   that   this 

21  Trustees  of  Schools  v.  Braner,  was  not  an  estate  upon  condition, 
71  111.  546;  Eldridge  v.  Trustees  of  but  only  a  contractural  restriction 
Schools,  111  111.  576.  upon   the   use   of   the   premises   eon- 

2-' White   V.   Naerup,   57  111.   App.  veyed.     Observe  that  the  Court  lays 

114,  118  (1st  Dist.,  Gary,  J.).  stress   upon   the   fact   that   there   is 

23  Supervisors  Warren  Co.  r.  Pat-  no   clause   of   re-entry.     That,  how- 

ter.son,  56  111.  111.  ever,  is  not  necessary  if  the  condi- 

2*  Harris  v.  Shaw,  13  111.  456.  tion  is  clearly  expressed. 

25  Board  of  Education  v.  Trus-  Clearly  where  property  is  con- 
tees,  etc.,  63  111.  204.  Eckhart  v.  veyed  to  a  churcli  there  is  no  ground 
Irons,  128   111.   568,   is   to   the   same  of   forfeiture   when   it   ceased   to   be 

229 


§221]  FUTURE    INTERESTS  [Ch.  XIII 

§  221.  Cases  where  a  grantee  is  to  support  the  grantor  for 
the  remainder  of  his  life  2«  or  pay  him  an  annuity:  -"^    Is  the 

support  or  the  paymont  of  an  annuity  merely  a  personal  cove- 
nant or  is  its  breach  made  a  ground  of  forfeiture  of  the  fee 
simple?  It  is  of  course  possible  by  explicit  terms,  to  make 
it  the  latter,  but  in  none  of  the  cases  mentioned  here  Avas  it 
done.  In  eacli  case  a  bill  Avas  filed  by  the  grantor  to  rescind  the 
contract  and  for  a  recouA-cyancc.  In  three  cases  Avhere  the  con- 
tract AA-as  for  ])ersonal  support.-**  Avhicli  the  grantee  failed  to 
furnish  under  shameful  circumstances,  our  Supreme  Court  said 
there  AAere  equitable  grounds  for  sustaining  the  prayer  of  the 
bill.-^  This  holding  does  not,  hoAvever,  in  any  Avay  proceed 
upon  the  ground  that  the  estate  is  conditional.  In  a  recent 
casej^*^  Avhere  the  grantee  fully  performed  his  contract  so  long 
as  he  liA'ed,  but  Avhere  his  heirs  failed  to  do  so,  it  Avas  held  that 
there  Avas  no  ground  in  equity  for  the  rescission  prayed  for; 
and  the  court  expressly  said  that  "the  intervention  of  equity 
in  such  cases  has  been  sanctioned  in  this  state  on  the  theory 
that  the  neglect  or  refusal  of  the  grantee  to  comply  Avith  his 
contract  raises  a  presumption  that  he  did  not  intend  to  comply 
Avith  it  in  the  first  instance,  and  that  the  contract  Avas  fraud- 
ulent in  its  inception."  In  another  case  where  the  contract 
Avas  merely  for  the  payment  of  a  life  annuity  to  the  grantor  ^^ 
the  court  said  there  Avas  no  condition  and  no  equitable  grounds 
for  rescission  and  a  decree  for  the  grantor  Avas  reversed. 

§  222.  Cases  where  words  of  condition  are  used,  but  there 
is  no  re-entry  clause — The  primary  meaning  of  the  words  of 
condition:  Words  of  condition  Avithout  a  re-entry  clause  are 
pri)na  facie  effective  to  create  an  estate  upon  condition.^-     In 

used  for  the  church  edifice:     King  ^7  Gallaher    v.    Herbert,    117    111. 

V.  Lee,  282  111.  530.     So  where  the  160. 

property      was      conveyed      for      a  -^  Supra,   note   26. 

"church  location,"  the  unrestricted  29  See  also  O'Neil  v.  Caples,  257 

fee  was  held  to  have  been  conveyed:  111.   528;    De  Costa  v.   Bischer,  287 

Downen  v.  Eayburn,  214  111.  ;{42.  III.  598. 

2GFrazier   v.    Miller,    16   111.    48;  -"J  Stcbbins  v.  Petty,  209  111.  291. 

Oard  V.  Oard,  59  111.  46;   Jones  v.  Sec  also  Pittenger  v.  Pittenger,  208 

Neely,  72  111.  449;  Stebbins  v.  Petty,  111.  582. 

209    111.    291;    Cooper   v.    Gum,  152  •''i  Gallaher    v.    Herbert,    117    111. 

111.  471;   Fabrice  v.  Von  der  Brelie,  160. 

190  111.  460;   Cumby  v.  Cumby,  240  32  Hays  v.   St.   Paul   Church,    196 

111.   235.  111.  633;  Supervisors  Warren  Co.  v. 

230 


Ch.  XIII]  CONDITIONAL    ESTATES  [§222 

many  of  the  cases,  the  eoiirts  note  the  absence  of  the  re-entry 
clause  and  declare  that  its  presence  is  not  necessary  to  make 
an  estate  upon  condition  where  there  are  express  words  of 
condition. 23  All  the  decisions  noted  were  made  in  spite  of  the 
fact  that  the  court  leaned  aj^ainst  construing  the  deed  as  one 
upon  condition  Avith  a  right  of  re-entry  in  the  grantor.  In 
several  this  attitude  of  the  court  was  very  foicihly  ex  pressed. ''•• 
Even  in  the  leading  case  of  Post  v.  ^VeiW^•'  where  the  court, 
relying  upon  all  the  circumstances  surrounding  the  execution 
of  the  deed,  held  that  the  words  of  condition  did  not  make  an 
estate  upon  condition,  but  merely  a  promissory  obligation  on 
the  part  of  the  grantee,  it  concedes  that  the  primary  and  ac- 
cepted meaning  of  words  of  condition  without  a  re-entry  clause 
creates  an  estate  upon  condition  which  it  takes  special  circum- 
stances or  a  special  context  to  overcome.  It  is  clear  also  that 
this  same  leading  case  does  not  regard  tlie  absence  of  a  re-entry 
clause  as  significant  against  the  creating  of  a  conditional  estate 
by  virtue  of  the  words  of  condition. ••'•  It  is  no  doubt  true  that 
in  cases  where  the  court  holds  that  words  of  condition  create 
merely  a  promissory  obligation  on  the  part  of  the  grantee,  the 
absence  of  a  re-entry  clause  may  be  commented  upon.  Never- 
theless, in  all  of  these  cases  the  absence  of  a  re-entry  clause  is 
mentioned  simply  as  a  circumstance  which  makes  it  possible 
for  the  court  to  resort  to  the  surrounding  circumstances  in  aid 

Patterson,  56  111.  Ill,  120;   Harris  Y.)  455;  Mead  v.  Ballard,  74  U.  S. 

V.  Shaw,  13  111.  456;  Gray  v.  Blanch-  290;    Hooper  v.   Cummings,  45  Mc. 

ard,  8  Pick.  (Mass.)  283;  Blanchard  359;    Chapman   r.   Pingree,   67   Me. 

V.    The    Detroit,    Lansing    &    Lake  198;  Weinreich  v.  Weinreich,  18  Mo. 

Michigan  Railroad  Co.,  31  Mich.  43;  App.    364;    Parsons    v.    Miller,    15 

Hammond  v.  Port  Royal  and  Angus-  Wend.    (N.  Y.)    561. 

ta  Railway  Co.,  15  S.  C.  10 ;  Taylor  23  Gray    v.     Blanchard,     8     Pick. 

V.  Cedar  Rapids  and  St.  Paul  R.  R.  (Mass.)    283;    Papst    r.    Hamilton, 

Co.,  25  la.  371;  Maya?.  Boston,  158  133    Calif.    631;    Brown   r.   Chicago 

Mass.   21;    Papst  v.   Hamilton,   133  &  N.   W.   Ry.   Co.,   82  N.  W.   1003 

Calif.  G31;   Adams   r.  Valentine,  33  (la.). 

Fed.  Rep.  1;   Reichenbaeh  r.  Wash-  -■•Weinreich  r.  Weinreich,  18  Mo. 

ington,  ete.,  Ry.  Co.,  10  Wash.  357;  App.   364;    Adams  v.   Valentine,  33 

Mills   V.    Seattle,    etc.,    Ry.    Co.,    10  Fed.  Rep.  1. 

Wash.  520;  Brown  v.  Chicago  &  N.  3o  115  N.  Y.  361,  369. 

W.   Ry.   Co.,   82   N.  W.  Rep.    (la.)  "b  Post   v.   Weil,   115   N.   Y.   361, 

1003;     Underhill    v.    Saratoga    and  371. 

Washington  R.  R.  Co.,  20  Barb.   (X. 

2^1 


§223]  ESTATES  [Ch.XIII 

of  construction,  and  not  as  a  fact  which  of  itself  in  any  way 
controls  the  construction.  This  is  brought  out  with  exactness 
and  precision  by  Gray,  J.,  in  Post  v.  Weil.^'^  In  Stilwell  v. 
St.  L.  &  H.  Ry.  Co.,^^  the  court  says  that  "some  of  the  au- 
thorities hold  that  such  words  [words  'on  condition']  when 
used  in  private  grants,  are  not  sufficient  [to  create  an  estate 
upon  condition,]  unless  conjoined  with  others  giving  a  right  to 
re-enter,  or  declaring  a  forfeiture  in  a  specified  contingency." 
This  is  the  only  suggestion  of  any  such  rule  which  has  been 
found.  It  is  borne  out  by  no  authorities  whatever  so  far  as  is 
known.  The  court  itself  says:  ''This,  probably,  is  too  broad 
a  statement  of  the  rule."  It  would  seem  therefore,  that  the 
first  principle  established  by  the  cases  is  that  words  of  condi- 
tion without  a  re-entry  clause,  according  to  their  normal  and 
accepted  meaning,  create  an  estate  upon  condition  and  not  a 
mere  promissory  obligation  on  the  part  of  the  grantee. 

Of  course,  the  special  context  of  the  whole  instrument  has 
been  allowed  to  turn  the  condition  into  a  covenant.  Thus,  if 
the  conditional  words  require  the  grantor,  instead  of  the  grantee, 
to  do  something,  it  has  never  been  taken  as  a  condition,  but 
always  as  a  covenant.^^  So,  if  the  word  "condition"  is  used 
in  a  will,  the  context  frequently  shows  that  it  was  used  as  a 
word  designating  the  trusts  of  a  fund  or  the  charging  of  a  gift 
with  the  payment  of  legacies.'**^  The  cases  of  unclassified  special 
contexts  where  the  word  "condition"  has  meant  "covenant"  are 
of  course  legion. ^^ 

§  223.  How  far  resort  may  be  had  to  circumstances  sur- 
rounding- the  making"  of  the  deed  to  impose  upon  words  of  con- 
dition alone  the  effect  of  creating-  a  covenant  only — Introduc- 

3T  115  N.  Y.  361,  371.  Newman,  239  111.  616.     But  in  Nev- 

38  39  Mo.  App.  221,  227-228.  ius  v.   Gourley,   95   111.   206,   97   111. 

39  Paschall  v.  Passmore,  15  Pa.  365,  and  Jacobs  v.  Ditz,  260  111.  98, 
St.  295,  307,  309;  Woodrufe  v.  post,  §442,  the  payment  was  held 
Woodruff,  44  N.  J.  Eq.   349.  to  be  a   condition   precedent  to   the 

40  Stanley  v.   Colt,   5   Wall.    119;  taking  effect  of  the  gift. 

Wright  V.   Wilkin,  2    B.   &   S.    232  "  Eckhart  v.  Irons,  128  111.  568 

(110  Eng.  Com.  Law  Rep.);  Attor-  Portland  v.  Terwilliger,  16  Ore.  465 

ney-General  v.  Corporation  of  South-  Minard  v.  Delaware,  L.  &  W.  R.  Co 

molton,  14  Beav.  357;  Attorney-Gen-  139  Fed.  60;  Los  Angeles  University 

eral  v.  Wax  Chandlers  Co.,  42  L.  J.  v.  Swarth,  107  Fed.  798.    A  fortiori, 

Ch.    N.    S.    425;    Sohier    v.    Trinity  where    there    are    merely    words    of 

Churr-h,    109    Mass.    1;    Spangler    v.  agreement. 

232 


Ch.  XIII]  CONDITIONAL   ESTATES  [§224 

tory:  So  Ion<^  as  tlie  words  "on  condition,"  without  a  re- 
entry clause,  have  the  legal  primary  meaning  of  words  of  con- 
dition and  not  of  covenant,  hardly  any  resort,  as  a  practical 
matter,  can  be  had  to  extrinsic  circumstances.^-  This  is  the 
view  of  some  courts  still. '♦^  Other  courts,  however,  have  in  effect 
denied  the  words  "on  condition,"  without  a  re-entry  clause, 
any  such  legal  primary  meaning  and  have  treated  such  words 
as  inherently  ambiguous.  The  result  is  that  a  resort  to  the 
extrinsic  circumstances  becomes  necessary  in  every  case.  The 
question  then  arises,  what  character  of  extrinsic  circumstances 
are  helpful  in  showing  that  a  condition  was  meant,  or  that  a 
covenant  only  was  meant."** 

§  224.  A  strong  circumstance  that  a  condition  is  created : 
If  the  conveyance  is  for  a  special  purpose  which  excludes  all 
beneficial  use  by  the  grantee  excepting  in  the  line  of  the  special 
purpose,  so  that  there  must  be  a  natural  desire  when  the  special 
purpose  is  fulfilled  or  the  land  no  longer  required  for  it,  that 
the  grantor  should  have  his  land  back,  the  words  of  condition 
will  usually'  be  taken  in  their  primary  meaning.  This  is  espe- 
cially apt  to  be  the  case  where  land  is  conveyed  for  a  particular 
charitable  purpose,*"'  or  for  highway  purposes.*^ 

*-  Ante,  §§  128  et  seq.  tics  which  they  have  not  seen  fit  to 

■*»  Gray     v.     Blanchard,     8     Pick.  make    for    themselves,    nor    can    the 

(Mass.)    283;    Adams   v.   Valentine,  courts  relieve  them  from  their  folly, 

33  Fed.  1 ;  Hammond  v.  Port  Koyal  however  great,  in  entering  into  im- 

Ky.  Co.,  15  S.  C.  19,  32.  provident     contracts,"      Per    Eom- 

**  ' '  That     conditions     subsequent  bauer,  P.  J.,  in  a  dissenting  opinion 

are  not  favored  in  the  law,  because  in  Stilwell  v.  St.  L.  &  H.  By.  Co., 

their     violation     works     forfeitures,  39  Mo.  App.  221. 

and  forfeitures  are  not  favored,  no  ^s  Papst   v.   Hamilton,    133    Calif. 

one     disputes;      but,     if     any     has  631. 

gone  to  the  extent  of  deciding  that  -to  May  v.   Boston,   158    Mass.   21. 

the  courts  will  disregard  a  condition,  The  case  of  Greene  v.  O  'Connor,  18 

provided  for  in  express  terms  as  a  E.   I.  56,  is  not  in  any  way  contra 

condition,      simply     because     under  to  this  last,  for  there  by  the  opera- 

'  surrounding  circumstances '  a  condi-  tion  of  a  special  statute  the  opening 

tion  was  not  the  wisest  thing  for  the  of  the  strip  of  land  conveyed  for  a 

parties   to   agree   upon,   the   opinion  public    highway    was    complete,   and 

certainly   fails  to  cite  it.     Such   an  there    could    be    no.   proof    of    any 

opinion  would   be  subversive  of  the  breach.      But    see    Druecker    v.    Mc- 

fundamental    rule,    that    the    courts  Laughlin,  235  III.  367. 
cannot   make  contracts  for  the  par- 

:  233 


§  225]  ESTATES  [Ch.  XIII 

§225.  Post  V.  Weil:^"  This  was  an  action  by  the  seller 
against  the  buyer  lor  speeitic  performance.  The  defense  was 
that  the  plaintiff's  title  was  defective,  because  subject  to  a  con- 
dition subsequent  upon  Avhich  a  forfeiture  might  be  declared. 
The  conditional  clause  of  the  deed  Avas  as  follows:  "Provided, 
always,  and  these  presents  are  upon  this  express  condition,  that 
the  aforesaid  premises  shall  not,  nor  shall  any  part  thereof, 
or  any  building  or  buildings  thereon  erected  or  to  be  erected, 
be  at  any  time  hereafter  used  or  occupied  as  a  tavern  or  public 
house  of  any  kind."  At  the  time  of  the  conveyance  the  grantor 
owned  other  property  in  the  vicinity  of  that  conveyed.  A  judg- 
ment below,  decreeing  specific  performance,  was  affirmed  on 
the  ground  that  that  language  did  not  make  a  conditional  estate. 
The  court  admitted  that  according  to  the  normal  meaning  of 
the  words  they  created  an  estate  upon  condition.  The  absence 
of  the  re-entry  clause  merely  permitted  the  court  to  go  into  the 
surrounding  circumstances  in  aid  of  construction.  The  result 
reached  was  rested  wholly  upon  the  bearing  of  the  circumstances 
surrounding  the  making  of  the  deed  upon  the  intention  of  the 
parties.  The  extrinsic  circumstances  were  as  follows :  •*'^  ( 1 ) 
The  grantee  paid  the  full  consideration  for  the  fee.  (2)  He 
received,  with  the  very  slight  qualification  of  the  deed,  the 
full  and  complete  enjoyment  of  the  property.  (3)  It  was  the 
sole  and  necessarv  consequence  of  complying  with  the  condi- 
tion that  the  neighboring  lands  of  the  grantor  would  be  bene- 
fited.^'-^      (4)   By  taking  the  words  as  making  a  covenant,  the 

*'  115  N.  Y.  361.  Sec  also  Ayl-  words  have  been  taken  as  condition- 
ing ('.  Kramer,  13.3  Mass.  12.  al.     Thus,  in  Blanchard  v.  The  De- 

48  These  circumstances,  or  at  least  troit,  Lansing  &  Lake  Michigan  K. 

the  first  three,  were  present  in  Avery  R.  Co.,   31   Mich.   43,  where  a  con- 

V.  N.  Y.  Cen.  R.  R.  Co.,  106  N.  Y.  veyance  to  a  railroad  was  made  upon 

142;  Stilwell  v.  St.  L.  &  H.  Ry.,  39  the   "express    condition"    that    the 

Mo.     App.     221,     and     Ayling     v.  said  railroad  company  should  build 

Kramer,  133  Mass.  12.  and  maintain  a  station  upon  the  land 

*9  If  the  act  to  be  performed  in  suitable  for  the  public  and  that  cer- 

fulfilling  the  condition  may  indirect-  tain   trains  should   stop,  the   clause 

ly  benefit  some  neighboring  land  of  was  held  to  be  a  condition  and  not 

the  grantor;  yet,  if  that  is  not  the  a  covenant.     See  also  Taylor  v.  Cc- 

sole,  necessary  and  inevitable  result  dar  Rapids  &  St.  Paul  R.  R.  Co.,  25 

— if,  in  addition,   there   is  the  ele-  la.   371,   and  Brown  v.   Chicago   & 

ment  of  a  conveyance  for  a  particu-  N.  W.  Ry.  Co.,  82  N.  W.  1003  (la.), 

lar    use    in    a    particular    way — the  to  the  same  effect. 

234 


ClI.  XIII]  COXDITIOXAL    LSTATES  [§226 

benefit  to  the  neighboring  land  as  snch  would  be  fully  assured 
to  the  owner  by  a  suit  in  equity  for  specific  performance ;  while 
as  a  condition  the  neighboring  owner,  who  was  an  assignee  of 
the  grantor,  would  have  no  benefit  at  all.-''" 

§226.  Druecker  v.  McLaughlin  :■"' *  This  case  follows 
Post  V.  Weil-'-  to  the  extent  of  holding  that  the  words  "on 
condition,"  without  a  re-entry  clause,  have  no  legal  primary 
meaning,  but  are  inherently  ambiguous,  so  that  resort  may  be 
had  to  extrinsic  circumstances  in  aid  of  interpretation.  The 
words  of  condition  involved  were:  "This  conveyance  is  made, 
however,  upon  the  expi-ess  condition  that  said  grantee  and  his 
assigns  .shall  keep  the  said  premises  open  as  a  private  way," 
etc.  The  surrounding  circumstances  relied  upon  to  show  that 
these  were  words  of  condition  were — the  fact  that  all  use  of  the 
strip  in  question  was  denied  the  grantee  except  its  use  in  com- 
mon with  others  for  right  of  way  purpo.ses ;  the  fact  that  by 
reason  of  a  small  piece  of  land  being  retained  by  the  grantor, 
the  land  in  question  was  not  available  as  a  way  appurtenant  to 
any  lots  in  the  subdivision  except  those  immediately  adjoining, 
and  that  the  clause  could  not  be  enforced  as  an  easement  be- 
cause the  grantee  did  not  sign  the  deed.  The  last  point  the 
court  put  aside  by  holding  that  an  easement  could  be  created 
by  reservation  without  the  grantee  signing,  even  though  there 
had  been  no  de  facto  existence  of  the  easement  before  the  deed. 
The  other  points  were  overcome  by  looking  into  the  surround- 
ing circunvstances  and  by  finding  an  intent  of  the  inducement 
of  the  parties  that  the  grantee,  who  bought  several  lots  adjoin- 
ing the  .strip  in  question  should  receive  the  condemnation  money 
when  the  .strip  was  taken  as  a  street.  This  agreement  could  not 
certainly  be  carried  out  if  the  strip  wei-e  subject  to  forfeiture. 
The  court  insisted  also  that  the  words  of  condition  were  for  the 
benefit  of  all  lots  in  the  subdivision.  On  the  whole,  this  case 
indicates  that  the  Supreme  Court  was  prepared  to  go  further 
than  Post  v.  Weil  in  relying  upon  extrinsic  circumstances  to 
turn  words  of  condition  into  words  of  covenant."'"' 

so  In  Hammond  v.   Port  Royal  &  seal  the  instrument,  and   so  a   eon- 
Augusta  Ry.   Co.,   15   S.  C.   10,  the  dition  was  created, 
court   held   that   the   words   of   con-  -"-i  2.15  111.  367. 
dition,   if   taken   as  words   of   cove  -'-Ante,  §22."). 
nant,  could  not  create  any  rights,  be-  -'2  Koch  r.  Streuter,  2:^2  111.  otiJ ; 
cause  the  grantee  did  not  sign  and  Nowak  r.  Dombrowski,  267  111.  103, 

235 


§  227]  FUTURE   INTERESTS  [Ch.  XIII 

§  227.    Breach  of  condition  created  by  act  of  the  parties : 

The  quest iou  of  whether  a  oonditiou  has  been  broken  has  arisen 
regarding  conditions  of  forfeiture  on  alienation.''^  Thus,  in 
Voris  V.  Renshaw  ^^  the  conveyance  of  the  fee  in  1850  was 
"upon  this  express  condition,  that  the  said  grantee  shall  not 
convey  the  above  property,  except  by  lease  for  a  term  of  years, 
to  any  person  whomsoever  prior  to  January  1st,  1861."  It  was 
held  that  this  condition  was  not  broken  when  the  grantee  gave 
a  lease  for  99  years  and  contracted  to  sell  his  reversion.  A  con- 
veyance upon  condition  that  the  land  be  not  used  for  other 
than  school  purposes  is  not  broken  according  to  the  dictum  of 
Trustees  of  Schools  v.  Bremer '^*^  if  the  land  be  leased  and  the 
income  applied  to  school  purposes.  A  sale  of  the  land  by  the 
school  trustees  w^ould,  according  to  the  same  case,  be  a  breach 
of  the  condition.  In  leases  this  sort  of  condition  takes  the  form 
of  a  provision  against  assignment  or  subletting.  It  has  been 
held  that  a  voluntary  assignment  for  the  benefit  of  creditors  is 
the  breach  of  such  a  condition.^'^  But  where  one  of  two  joint 
lessees  occupying  part  of  the  premises  takes  in  a  partner  the 
condition  has  been  held  not  to  be  broken.^^ 

In  Hawes  v.  Favor  ^^  it  was  held  that  there  was  no  breach 
of  a  condition  in  a  lease  not  to  destroy  the  dwelling  house  on 
the  premises  without  the  lessor's  consent.  In  King  v.  Edwards  ^o 
there  was  held  to  be  no  default  in  the  payment  of  rent  under 
the  provisions  of  a  coal  lease.  In  Dockrill  v.  Schenk^^  it  was 
held  that  there  was  no  breach  of  the  condition  that  the  tenant 

semble,  where  the  condition  was  that  right  to  run  a  parallel  track  along 
the    grantee  pay   money,   the   court  the   same   right   of   way, ' '   did   not 
construed  the  clause  as  a  covenant  create  a  condition, 
merely.  54  As  to  the  validity  of  such  con- 
In  Elyton  Land  Company  v.  South  ditions  see  post,  §  711  et  seq. 
and  North  Alabama  R.  R.  Co.,  100  ^,5  49  m.  425. 
Ala.  396,  the  court  went  outside  the  •'ic  71  111.  546,  547. 
record  and  assumed  that  the  grantor  •<'  Medinah    Temple    Co.    v.    Cur^ 
had  land  in  the  vicinity  of  the  rail-  rey,  162  111.  441. 
road  which  it  desired  to  benefit.     It  ^s  Boyd  v.  Fraternity  Hall  Assn., 
then  held  a  clause  in  a  deed  of  the  16  111.  App.  574. 
right   of   way   which   read:      "Pro-  69  161111.440. 
vided,  however,  that  any  other  rail-  fio  .32  111.  App.  558. 
road    running    into    or   through    the  «i  .37  111.  App.  44. 
City  of  Birmingham  shall  have  the 

236 


ClI.  XIIIJ  CONDITIONAL    ESTATES  (§229 

pay  all  special   assessments,  since  the  landlord  had  given  him 
no  notice  to  pay  them."- 

Topic  2. 
Conditions  Created  by  Operation  op  Law. 

§  228.  (1)  Upon  the  conveyance  of  a  fee  simple — In  gen- 
eral: Conditions  of  this  sort  are  comparatively  rare.  Tlie 
one  attached  to  tlie  conveyance  of  a  fee  simple  passing  to  the 
municipality  upon  a  statutory  dedication  will  be  fully  dealt 
with  hereafter.*^-' 

§  229.  Mortgages — Difficulty  in  the  rule  that  when  the  debt 
is  barred  the  mortgagee  has  no  right  to  possession:  The  law 
seems  settled  in  this  .state  that  the  moment  the  mortgage  debt 
is  barred  by  the  statute  of  limitations  no  ejectment  can  be 
maintained  by  the  mortgagee  against  the  mortgagor  or  those 
who  claim  under  him.^'*  This  seems  to  be  tlie  law^  quite  regard- 
less of  any  special  statute  of  limitations  governing  mortgages 
such  as  sec.  11  of  the  act  of  1872,6-^  for  the  rule  obtains  in  a 
case  wlierc  the  right  of  entry  by  the  mortgagee  has  not  been 
barred  by  adverse  possession,  and  where  sec.  11  of  the  act  of 
1872  has  no  application, — as,  for  instance,  where  the  mortgage 
is  not  governed  by  that  act  because  executed  before  1872,6'' 
or  where  the  mortgage,  though  controlled  by  the  act,  is  given 
to  secure  a  debt  not  evidenced  by  a  writing  « '  so  that  it  is  barred 

C2  See  also  Gilbert  v.  Holmes,   64  the  doctrine  of  the  text  but  the  case 

111.   .148   and   People   v.  Gilbert,   64  could   have    been   fully   disposed    of 

111.  App.  20:5.     lu  Tomliu  v.  Blunt,  under   sec.    11   of   the   Act  of    1872 

.31  111.  App.  234,  the  condition  seeni.s  {infra,  note  65). 

to  have  been  relied  upon  as  embody-  or,  Laws   1871-2,   p.    558,    §11;    R. 

ing  also  a  covenant.    See  also,  I.  C.  S.  1874,  eh.  83,  §  11. 

R.   R.   Co.   V.   Wathen,   17  111.   App.  go  Pollock  v.  Maison,  41  111.   516; 

582;  O'Neil  v.  Caples,  257  111.  528;  Emory  v.  Keighan,  88  111.  482. 

Springfield,  etc.   Trac    Co.   v.   War-  ct  Practically     this     would     occur 

rick,  249  111.  470.  only   when    a    deed   absolute    ou    its 

c3  Po.9^,  §§  283-299.  face   was   construed   to    be    a   niort- 

04  Pollock  V.  Maison,  41  111.  516;  gage  securing  a  debt  not  evidenced 

Gibson    v.    Rees,    50    111.    383,    405  by   a    writing,    for    in    a    mortgage 

(semble)  ;    Emory    v.    Keighan,    88  securing  an  open  account  the  mort- 

111.  482 ;  Schumann  v.  Sprague,  189  gage  itself  is  apt  to  recite  the  items 

111.     425     (semble).       In    this    last  of  the  open  account  and  to  contain 

case   the   court    seems   to    announce  a   written  promise  to  pay   it   wliiili 

237 


J;  230]  FUTURE    INTERESTS  |CiI.  XIll 

ill  five  years.^^ 

Tliis  lioldiiig  has  distui'bod  the  law  of  future  interests  be- 
cause of  tlie  atteni])t  to  explain  it  upon  some  theory  as  to  the 
nature  of  the  mortgagee's  legal  interest,  instead  of  on  the  prin- 
ciple of  equitable  defenses. 

§  230.  View  that  the  mortgagee  has  a  base  or  determinable 
fee:  The  rule  set  out  in  the  preceding  paragraph  having  be- 
come "svell  settled  our  Supreme  Court  began  to  call  the  title 
of  a  mortgagee  in  fee  "in  the  nature  of  a  base  or  determinable 
fee/'  saying  that  "the  term  of  its  existence  is  measured  by 
that  of  the  mortgage  debt.""'^  If  this  means  that  the  mort- 
gagor has  a  possibility  of  reverter  upon  the  termination  of  a 
fee  simple  it  is  open  to  some  objection.  Since  the  statute  of 
qiiia  emptores  the  possibility  of  the  existence  of  such  an  interest 
by  act  of  the  parties  may  well  be  doubted.'^"  But  even  if  the 
mortgagor  has  a  possibility  of  reverter  arising  by  operation  of 
law,'^  such  an  interest  would  not,  in  general,  be  transferable 
by  deed'-  as  it  is  admitted  the  mortgagor's  is.  Under  such 
a  view  it  would  be  difficult  to  explain  the  holding  that  even 
after  the  debt  is  barred,  yet,  by  a  new  promise  or  part  pay- 
ment, all  the  rights  of  the  mortgagee  spring  into  existence 
again  and  he  may  maintain  ejectment.'^  For  how,  if  the  mort- 
gagee's interest  terminate  by  its  own  limitation,  can  it  ever 
arise  again?  Such  juggling  in  legal  titles  would  seem  to  be 
indefensible. 

§231.  View  that  the  mortgagee's  interest  after  default  is 
subject  to  a  condition  subsequent:  It  is  believed,  also,  that 
it  cannot  be  satisfactorily  argued  that  there  is  in  the  mortgage 

would  be  barred  only  by  the  ten-year  ""  Posi,  §  302. 

statute.     See  Field  v.  Brokaw,  148  "  Ware   v.   Schintz,   190   111.    189, 

111.  654.  19.1. 

BS  Laws  1871-2,  p.  .'3.59;  R.  S.  1874,  T2  Post,  §  .'502. 

ch.  8.3,  §  15.  '^  This   rule   has   been   applied    in 

69  Mr.  Justice  Mulkey  in   Barrett  the     case     of     bills     to     foreclose : 

V.   Hinckley,   124  111.   32,  46,  seems  Schifferstein  v.  Allison,  123  111.  662. 

to  have  first  used  these  expressions.  No  reason  is  perceived  why  the  same 

They  were  repeated  in  Lighteap  v.  result  should  not  obtain  in  case  the 

Bradley,     186     111.     510,    522,    and  mortgagee  brings  ejectment, 
adopted  in  Ware  v.  Schintz,  190  111. 
189,  193. 

288 


Cn.  XIUJ  CONDITIONAL    ESTATES  |  S  ^IH 

a  condition  siibscciucnt  which  ^yives  tlif  nif)rt^''af^or  a  right  of 
entry  upon  tlio  extinguishment  of  the  debt  by  the  statute  of  limi- 
tations. Tliere  is,  of  course,  no  sucii  condition  in  fact  expressed, 
so  it  must  arise,  if  at  all,  by  operation  of  law.  But,  even  so, 
the  interest  of  the  mortgagor  would  be  one  that  is  not  usually 
transferable  by  deed."^  This,  as  under  the  view  of  §  230,  is  a 
constant  ditTiculty  with  working  out  the  peculiarities  of  the  estate 
of  the  mortgagee  upon  principles  governing  legal  future  inter- 
ests generally."-''  There  is  another  ditficulty  w^hich,  however,  it 
is  believed  may  be  met.  Statutes  of  limitations  barring  the 
owner's  remedy  against  a  stranger  do  not  operate  to  transfer  his 
title  to  the  stranger,  but  the  stranger  is  in  of  a  new  and  original 
title  by  the  statute,  it  might  be  thought,  then,  that  a  statute 
which  declared  that  a  inoi'tgagor  should  be  invested  Avith  a  new 
and  original  legal  title  against  the  mortgagee  after  the  mortgage 
debt  was  barred  oi-  after  ten  years  of  default  in  payment  of  the 
debt,  would  be  unconstitutional.  Such  an  act  applying  only 
when  the  mortgagor  remained  in  possession  during  the  ten  years 
would  be  valid  enough  as  a  short  statute  of  limitations  for  ad- 
verse holders  of  a  particular  sort.  So,  if  the  act  applied  when 
the  premises  were  vacant  and  unoccupied  provided,  at  the  end 
of  the  ten  years,  the  mortgagor  took  possession,  it  might  be  sus- 
tained. Suppose,  now,  that  the  act  applied  even  though  the 
mortgagee  was  in  possession  all  the  time.  It  seems  to  be  the 
intimation  of  ]Mr.  Justice  Cartwright  that  it  would  be  luicon- 
stitutional,  as  taking  the  mortgagee's  legal  title  without  due 
process  of  law'.'^'  But  is  there  not  a  perfectly  rational  ground 
for  destroying  the  mortgagee's  legal  rights,  held  by  him  as  a 
security,  when  the  debt  secured  is  lost  ?  It  is  only  another  way 
of  effectually  barring  all  remedy  for  the  collection  of  the  debt. 
There  is  no  arbitrary  deprivation  in  such  action. 

■*  Post,  §§  240,  300,  302.  the  premises,  not  by  any  new  title, 
'5  Observe  an  objection  which  but  by  the  title  which  he  always 
the  court  itself  has  raised  against  had.  Statutes  of  limitation  do  not 
this  view:  In  Lightcap  r.  Bradley,  transfer  title  from  one  to  another, 
186  111.  510,  523,  Mr.  Justice  Cart-  and  a  statute  of  limitations  whicli 
Wright  said :  ' '  The  mortgagor 's  would  have  the  effect  of  transfer- 
title  is  then  [after  the  debt  is  ring  the  legal  title  back  from  the 
barred  by  the  statute  of  limita-  mortgagee  to  the  mortgagor  would 
tions]  freed  from  the  title  of  the  be  unconstitutional. " 
mortgagee,  and  he  is  the  owner  of  "**  Id. 

239 


§  232]  FUTURE   INTERESTS  [Cu.  XIII 

§  232.  Barring  of  the  debt  is  simply  an  equitable  defence 
to  the  mortgagee's  legal  title:  The  writer  suggests  that  the 
barring  of  the  debt  by  the  statute  of  limitations  is  simply  an 
equitable  defence  to  the  mortgagee's  legal  title,  and  that  this 
equitable  defence  may  be  urged  in  an  action  of  ejectment. 
Equity  may  say  that  the  debt  is  the  real  thing  and  that  when 
this  is  extinguished  in  any  way,  either  by  payment  after  the 
day  it  is  due,  or  by  being  barred  by  the  statute  of  limitations, 
or  in  any  other  mode,  equity  would  enjoin  the  action  at  law  for 
possession.  This  would  furnish  the  basis  for  the  equitable  de- 
fence. On  the  same  reasoning  equity  would,  upon  a  bill  filed, 
decree  a  reconveyance.'^^ 

The  difficulty  with  this  explanation  is  that  the  extraordinary 
jurisdiction  of  equity  is  not  usually  to  be  invoked  unless  the  com- 
plainant is  willing  to  do  equity,  and  doing  equity  in  the  case 
put  would  seem  to  require  payment  of  the  sum  due.  Our  Su- 
preme Court  has,  however,  decreed  otherwise,'^^  and  the  subse- 
quent act  of  the  legislature  ^^  providing  that  "no  person  shall 
commence  an  action  or  make  a  sale  to  foreclose  any  mortgage 
or  deed  of  trust  in  the  nature  of  a  mortgage,  unless  within  ten 
years  after  the  right  of  action  or  right  to  make  such  sale  ac- 
crues," if  not  actually  covering  the  case  of  ejectment  by  the 
mortgagee,  would,  at  least,  seem  to  have  supplemented  and  re- 
inforced the  rule  already  established  by  the  decisions.  Neverthe- 
less, the  recent  case  of  Fitch  v.  Miller  so  indicates  that  we  may 
still  hope  to  overthrow  tlie  rule  of  the  earlier  cases  ^^  to  the  ef- 
fect that  the  mortgagee  cannot  maintain  ejectment  after  his 
debt  is  barred.  Nor  need  we  despair  of  confining  the  operation 
of  the  statute  to  that  of  barring  the  right  to  foreclose  or  sell 
under  a  power,  thus  leaving  the  mortgagee  to  his  legal  title, 
which  must  prevail  unless  the  mortgagor,  without  laches,  seeks, 
to  redeem. 

Fitch  V.  Miller  actually  holds  that  where  a  deed,  absolute  on 

77  In   Murray   v.   Emery,    187   111.  78  Ante,  §  229. 

408,     the     mortgagor's     transferee  79  R.  S.  1874,  ch.  83,  §11. 

filed  a  bill  to  remove  the  trust  deed  80  200  111.170. 

as   a  cloud.     It   was   dismissed  be-  s^  Ante,  §229. 

cause  the  trust  deed  and  debt  were 
not  barred  by  the  statute  of  limita- 
tions. 

240 


ClI.  XIJI]  CONDITIONAL    ESTATES  [§232 

its  face,  was,  in  equity,  a  mortgage  by  virtue  of  an  instrument 
in  writing,  but  not  under  seal,  stating  that  it  was  the  intention 
of  the  parties  that  tlie  deed  should  be  considered  a  mortgage,  and 
when  seventeen  years  had  elapsed  since  default  and  no  tender 
of  the  amount  due  had  ever  been  made,  no  petition  in  equity  for 
partition  could  be  maintained  by  the  heirs  of  the  mortgagor.  The 
reasoning  is,  that  since  the  mortgagor  can  in  such  a  case,  have 
no  remedy  except  in  equity,  he  shall  have  none  there,  if  he  is 
guilty  of  laches  and  fails  to  do  equity  by  tendering  the  amount 
of  the  loan.  Semhle,  that  ten  years'  default  and  failure  to  tender 
the  amount  due  are  always  prima  facie  sufficient  to  bar  the  mort- 
gagor's  relief  in  equity.  Semble,  also,  that  mere  failure  to  tender 
the  amount  of  the  loan,  even  though  the  debt  be  barred,  will  de- 
prive the  mortgagor  of  relief  in  equity.  The  court  also  intimates 
that  the  ten  year  limitation  act  does  not  prevent  the  mortgagee 
from  standing  on  his  legal  title.  This  reasoning  must,  it  is  be- 
lieved, apply  equally  well  to  the  case  of  the  ordinary  mortgage 
with  a  defeasance  clause.  After  default  the  mortgagee  has  the 
legal  title  and  the  right  to  possession.  The  mortgagor's  rights 
are  wholly  in  equity.  Suppose,  then,  the  mortgagor  be  in 
default  for  ten  years,  and  then  the  mortgagee,  relying  upon 
his  legal  title,  brings  ejectment.  If  there  is  any  defence  it  is  a 
purely  equitable  one — a  defence  founded  upon  the  fact  that  the 
mortgagor  could  have  a  bill  for  an  injunction  to  restrain  the 
mortgagee's  action  at  law.  If  equity  would  not  interfere  di- 
rectly because  of  the  mortgagor's  laches  and  because  of  his  failure 
to  tender  the  amount  due,  then  there  should  be  no  defence 
at  law;  and  if,  in  partition  without  tender  and  with  laches, 
the  mortgagor  could  have  no  relief  surely  the  same  court  of 
equity  would  not  grant  an  injunction  restraining  the  mort- 
gagee's suit  at  law  or  the  mortgagee's  defence  of  legal  title  in 
an  action  of  ejectment  against  him  by  the  mortgagor.  If  that 
be  so,  why  does  not  Fitch  v.  Miller  go  a  long  way  toward  overrul- 
ing the  earlier  cases  s-  which  held  that,  when  the  mortgage  debt 
is  barred,  the  mortgagee  cannot  bring  ejectment?  "Wliy  does 
it  not  practicalh'  confine  the  operation  of  sec.  11  of  the  limita- 
tion act  to  foreclosure  proceedings  and  sales  under  powers? 
It  is  submitted,  however,  that,  if  the  view  that  the  mort- 

Kales  Flit.  Int. — 16  241 


§  233]  FUTURE   INTERESTS  [Ch.  XIII 

gagee  cannot  maintain  ejectment  after  the  debt  is  barred  be 
adopted,  the  theory  that  the  mortgagor  has  an  equitable  de- 
fence explains  the  result  with  the  least  disturbance  to  well  settled 
principles,  for  the  mortgagor's  equitable  interest  may  always  be 
transferred  and  there  is  no  difficulty  about  his  transferee  being 
allowed  to  take  advantage  of  the  same  equitable  defences  that 
he  might  have  availed  himself  of.  It  also  explains  rationally 
the  holding  that  when  the  statute  of  limitations  against  the 
debt  has  once  been  waived  by  a  new  promise  or  a  part  pay- 
ment the  mortgagee  becomes  entitled  to  all  his  old  rights,  for 
at  once  upon  the  waiver  the  equitable  defence  is  gone  and  there 
is  no  impediment  to  an  action  founded  upon  the  mortgagee's 
legal  title. 

§  233.  In  ca^e  of  lease-holds — Implied  condition  that  a  ten- 
ant shall  not  repudiate  the  tenancy  and  claim  to  hold  against 
the  landlord:  It  is  clear  that  if  a  tenant  not  only  disclaims 
to  hold  under  his  landlord  but  acknowledges  another  as  such 
and  pays  rent  to  him,  the  former  may,  without  any  formality, 
elect  to  forfeit  the  tenancy  and  sue  for  possession  in  a  forcible 
detainer  suit  against  the  tenant  and  the  new  landlord  whom  he 
has  acknowledged.^^  It  seems  also  that  the  giving  up  of  posses- 
sion by  a  tenant  to  a  stranger  who  takes  an  assignment  or  sub- 
lease from  the  tenant,  but  claims  to  hold  under  a  paramount 
title  is  a  sufficient  ground  for  the  immediate  forfeiture  of  the 
original  lease.  Upon  such  forfeiture  the  landlord  may  at  once 
maintain  forcible  detainer  against  the  stranger-^-^  Even  a  mere 
oral  disclaimer  by  the  tenant  coupled  with  the  claim  of  title  in 
himself  is,  in  this  state,  a  sufficient  ground  of  forfeiture.'*^  The 
attempt  by  a  tenant  to  transfer  more  than  he  has  operates 
merely  as  an  assignment  of  his  interest.^*^  It  does  not  seem  that 
such  a  conveyance  should  by  itself  furnish  a  ground  of  for- 
feiture.®^ 

83  Ballance    v.    Fortier,    3    Gilm.  ss  Fusselman   v.   Worthington,    1-1 

(111.)    291;    Fortier    v.   Ballance,    5  III.    135;    McGinnis    v.    Fernaiules, 

Gilm.  (111.)  41;  McCartney  v.  Hunt,  126   111.   228;    Brown  v.   Keller,  32 

16  111.  76;   Cox  v.  Cunningham,  77  111.    151;    Herrell    v.    Sizeland,    81 

III.   545;    Doty   v.    Burdiek,    83    111.  111.   457;    Wood    i;.   Morton,   11   111. 

473;    Wall   v.   Goodenough,    16    111.  547. 

415   (semble).  su  Turner  v.   Hause,  199   111.  464. 

81  Hardin  v.  Forsytbe,  99  lU.  313;  See  also  post,  §  384. 

Thomasson   v.  Wilson,  146  111.  384.  «^  It  has  been  said  that  any  con- 

242 


Cri.  XII1|  CONDITIONAL    ESTATES  [  §  -•5"> 

!<  234.  By  acts  of  1865  ^'^  and  1873  ^•'— Prior  to  1865  no 
ground  of  forfeiture  in  the  absence  of  express  condition — In- 
troductory: Prior  to  the  act  of  1865  there  was  an  important 
distinction  between  covenants  and  conditions  in  leases  for  years. 
For  the  breach  of  a  covenant  tliere  was  no  ground  of  forfeiture. 
To  present  a  ground  of  forfeiture  it  was  necessary  that  the 
breach  of  the  covenant  should  also  be  made  by  express  lan- 
guage the  breach  of  a  condition  subsequent.  Unless,  therefore, 
the  non-payment  of  rent  were  made  in  terms  a  ground  of  for- 
feiture the  landlord's  only  remedy  was  to  sue  for  rent  due  and 
wait  for  the  expiration  of  the  tenancy. 

Direct  authority  upon  this  point  is  not  forthcoming.  No 
opinion,  however,  has  been  found  against  it  and,  on  principle, 
it  is  believed  that  it  must  be  sound. 

§  235.  On  principle:  There  was,  it  is  true,  an  implied  con- 
dition, upon  which  the  feudal  vassal  held  of  his  lord,  that  the 
vassal  should  perform  the  feudal  services  and  that  default  in 
their  performance  was  ground  for  forfeiture  though  no  condi- 
tion was  ever  expressed.^*^  From  a  consideration,  however,  of 
the  origin  of  leasehold  interests  in  terms  for  years,  it  will  appear 
that  this  feudal  doctrine  of  implied  conditions  could  have  no 
application  whatever  to  them.  Terms  for  years  started,  as  Sir 
Frederick  Pollock  has  pointed  out,^^  in  the  conception  that  "the 
relation  between  the  landlord  and  the  tenant  is  simply  a  personal 

veyance   by   a   tenant   at   sufferance  demand   was   not   satisfied   -witLin   a 

will  forfeit  the  tenancy:    Proctor  v.  certain  time.      (Wright  on   Tenures, 

Tows,  115  111.  138,  150.     The  owner,  196-197.)     Still  later  by  the  statute 

however,   is   always   entitled   to   pos-  of    52    Hen.    Ill,    c.    22,    the    right 

session  as  against  a  tenant  at  suffer-  of  forfeiture  by  inferior  lords  was 

ance.  entirely    taken    away,   leaving   them 

88  Laws  1865,  p.  107,  §  2.  In  force  only  a  right  to  distrain  upon  ehat- 
Feb.  16,  1865.  Re-enacted  in  1873;  tels,  (Wright  on  Tenures,  200.)  By 
Laws  1873,  p.  119,  §9;  see  R.  S.  the  statutes  of  Gloucester  (6  Ed.  I, 
1874,  ch.  80,  §9.  ch.  4),  and  Westminster   (13  Ed.  I, 

89  Laws  1873,  p.  119,  §8.  In  ch.  21)  the  right  of  forfeiture  was 
force  July  1st,  1873;  see  R.  S,  1874,  somewhat  restored.  (Wright  on 
eh.  30,   §  8.  Tenures,  201.) 

90  But  prior  to  the  time  of  Hen.  What  then  is  the  law  to-day 
III  even  this  right  was  modified,  where  a  life  estate  is  created  re- 
so  that  the  lord  was  only  put  into  sernng  rent,  but  no  express  condi- 
possession  of  the  fee  until  the  de-  tion  of  forfeiture?  Is  the  nonpay- 
mand  should  be  satisfied,  and  a  ment  of  rent  a  cause  of  forfeiture? 
forfeiture  could  be  had  only  if  the  9i  Land  Laws,  137. 

243 


§  236]  FUTURE   INTERESTS  [ClI.  XIII 

contract. ' '  From  a  strictly  feudal  point  of  view  there  was  ' '  not 
an  estate  at  all,  only  a  personal  claim  against  the  freeholder 
to  be  allowed  to  occupy  the  land  in  accordance  with  the  agree- 
ment. ' '  ^-  But  as  early  as  the  thirteenth  century  it  came  to 
be  the  law  that  if  the  tenant  "was  ejected  in  breach  of  his  land- 
lord's agreement,  he  could  recover  not  merely  compensation  for 
being  turned  out,  but  the  possession  itself;  and  this  not  only 
against  the  original  landlord  but  against  a  purchaser  from 
him.  "93  Thus,  the  leasehold  became  property,  but  it  was  dis- 
tinct at  almost  every  point  from  the  interest  of  the  feudal  ten- 
ant. "Being  in  legal  theory,"  writes  Sir  Frederick  Pollock,^^ 
"the  creature  of  contract,  it  has  neither  the  dignities  nor  the 
burdens  peculiar  to  freehold  tenures.  It  is  not  the  subject  of 
feudal  modes  of  conveyance,  nor  of  the  feudal  rules  of  in- 
heritance. No  particular  form  of  words  is  necessary  for  its 
creation ;  *  *  *  .  It  could  always  be  disposed  of  by  will  if 
the  tenant  died  before  the  expiration  of  the  term;  and  in  case 
of  such  death  the  law  deals  with  it  in  the  same  way  as  cattle  or 
money  and  it  goes  to  the  executor,  as  part  of  the  'personal  es- 
tate, '  to  be  administered  by  the  same  rules  as  movable  property. 
If  undisposed  of  by  will,  the  leasehold  tenant's  interest  belongs 
on  his  death  to  the  same  persons,  and  in  the  same  proportions, 
as  cash  or  railway  shares  which  he  has  not  disposed  of.*^^  There 
is  no  such  thing  as  an  heir  of  leaseholds.  In  one  word,  which 
for  the  lawyer  includes  all  that  has  been  said,  a  leasehold  is  not 
real  but  personal  estate."  The  origin  then  and  consequent  de- 
velopment of  the  status  of  a  leasehold  interest  preclude  the  appli- 
cation to  it  of  any  feudal  rule  raising  an  implied  condition  im- 
posing a  forfeiture  for  non-payment  of  rent,  and  make  the  in- 
sertion of  such  a  condition  in  express  terms  necessary. 

§  236.  Not  altered  by  any  statute  dovsm  to  1865 :  This  it  is 
believed  must  have  been  the  law  of  Illinois  down  to  1865, ^"^ 
The  act  of  1827  ^'^  which  now  appears  as  sec.  4  of  the  Landlord 
and  Tenant  Act  "'^  merely  gave  the  landlord  the  right  to  com- 

92  Pollock  on  Land  Laws,  138,  9o  Chadwick  v.  Parker,  44  111. 
ante,  §§  21,  31,  32.                                      .326,  335-336,  infra,  note  4  (semble). 

93  Pollock  on  Land  Laws,  138.  97  R.  S.   1827,   p.   279,   §4;    R.   S. 

94  Land  Laws,  137-138.  1833,   p.    675,    §4;    E.    S.    1839,    p. 
9.-.  Thornton    v.    Mehring,    117    111.       435,  §4;   R.  S.   1845,  p.  334,  §4. 

55.  98  R.    S.    1874,   ch.    80,    §4. 

244 


Ch.  XIIIj  CONDITIONAL   ESTATES  [§237 

mence  ejectment  without  any  formal  demand  or  re-entry  where 
one-half  year's  rent  was  in  arrear  and  unpaid,  provided  "the 
landlord  or  lessor  to  wlioni  such  rent  is  due  has  a  right  by  law 
to  re-enter  for  non-payment  thereof."  This  statute,  then,  only 
operated  if  the  landlord  already  had  a  right  to  re-enter  by  a 
clause  of  forfeiture  in  the  lease. 

§  237.  Sec.  2  of  the  act  of  1865  ••'  afterwards  appearing  as 
sec.  9  of  the  act  of  1873:  '  This  statute  was  a  wide  drparture 
from  the  common  law.  It  proceeded  to  minimize  tlie  distinction 
between  covenants  and  conditions  in  leases  by  making  all  cov- 
enants in  leases  conditions.  More  accurately  speaking  every 
breach  of  covenant  in  a  lease  is,  since  the  act  of  1865,  a  cause 
of  forfeiture  which  may  be  taken  advantage  of  by  the  statutory 
ten  days'  notice  to  quit.  The  language  of  the  act  as  it  now 
appears  in  R.  S.  1874  2  is:  "When  default  is  made  in  any 
of  the  terms  of  a  lease,^  it  shall  not  be  necessaiy  to  give  more 
than  ten  days'  notice  to  quit  or  of  the  termination  of  such  ten- 
ancy, and  the  same  may  be  terminated  on  giving  such  notice 
to  quit  at  any  time  after  such  default  in  any  of  the  terms  of 
such  lease. ' '  What  is  meant  by  ' '  default  in  any  of  the  terms  of 
such  lease"?  Does  it  mean  breaches  of  express  conditions,  or 
does  it  include  also  breaches  of  covenants  or  promises— as  for 
instance  the  usual  one  to  pay  rent?  It  would  seem  that  the 
expression  used  was  broad  enough  to  cover  all  contracts,  stipula- 
tions or  covenants,  even  though  no  condition  was  expressed, 
thus  in  effect,  turning  all  such  contracts,  stipulations  and  cov- 
enants into  conditions  by  force  of  the  statute.  This  construction 
is.  borne  out  by  the  fact  that  in  the  previous  act  of  1827  the 
legislature  gave  the  landlord  a  summary  remedy  only  if  he  had 
the  "right  by  law  to  re-enter."    There  are  some  pointed  dicta  •* 

99  Laws,  1865,  p.  107;  ante,  §234,  111.  203,  205;   Woods  v.  Soucy,  1C6 

note  88.  111.  407,  420. 

iLaws,   1873,  p.   118,   119;    R.  S.  In    Chadwick    r.     Parker,    supra, 

1874,  chap.  80,  sec.  9,  p.  658,  ante.  Walker,   C.   J.,   said:     "If  his    [the 

§234,  note  89.  landlord's]    lease  contains   a  clause 

2  Chap,  80,  sec.  9,  cf  reentry,  he  can,  if  he  choose  re- 

3  May   not  the  term  ' '  lease ' '   in-  sort    to    his    common    law    remedy, 
elude  a  lease  for  life?  or  failing  in  that,  he  may,  after  de- 

4  Chadwick     v.     Parker,     44     111.  fault,   give   notice    [under   the    stat- 
326,  335  336;   Leary  v.  Pattison,  66  ute  of  1S65]      *     *     *     and  on  the 

245 


§238] 


FUTURE    INTERESTS 


[Ch.  XUL 


and  at  least  one  clear  decision  of  our  Supreme  Court ''  in  favor 
of  this  view, 

§  238.  Sec.  8  of  the  act  of  1873:  '^  The  innovation  carried 
out  in  the  act  of  1865  was  again  applied  in  Sec.  8  of  the  act  of 
1873.  That  provides:  ''The  landlord  ^  or  his  agent  may,  at  any 
time  after  rent  is  due,  demand  payment  thereof,  and  notify  the 
tenant,  in  writing,  that  unless  payment  is  made  within  a  time 
mentioned  in  such  notice,  not  less  than  five  days  after  the  service 
thereof,  the  lease  will  be  terminated.  If  the  tenant  shall  not, 
within  the  time  mentioned  in  such  notice,  pay  the  rent  due, 
the  landlord  may  consider  the  lease  ended  and  sue  for  the  pos- 
session under  the  statute  in  relation  to  forcible  entry  and  de- 
tainer, or  maintain  ejectment  without  further  notice  or  de- 
mand."    It  is,  if  possible,  even  more  clear  in  this  act  than  in 


failure  of  the  tenant  to  pay  such 
arrears  he  may,  after  the  expiration 
of  the  time,  bring  his  suit  without 
further  notice.  If  the  lease 
contains  no  such  clause,  then  the 
landlord  may,  after  default  in  pay- 
ment, give  a  similar  notice,  and 
with  like  effect.  This  was  no 
doubt  what  was  intended  by  the 
legislature,  as  it  brings  within  its 
provisions  a  large  class  of  cases, 
not  embraced  in  the  common  law, 
and  affords  a  remedy  in  such 
cases,  not  previously  possessed,  of 
terminating  a  lease  and  regaining 
possession,  where  an  insolvent 
tenant  would  not  pay  his  rent,  in- 
stead of  leaving  the  landlord,  as 
he  was  before,  to  his  action  for  the 
recovery  of  his  rent. ' ' 

This  above  passage  is  quoted 
with  approval  in  Woods  v.  Soucy, 
supra. 

In  Leary  v.  Pattison,  supra, 
the  Court  speaks  of  Chadwick  v. 
Parker  as  holding:  "that  the  sec- 
ond section  of  the  Act  of  186."  was 
designed  to  dispense  with  the  ne- 
cessity of  making  a  common  law 
demand    for    rent   on    the   very   day 


it  became  due,  and  to  give  a  rem- 
edy ivhen  the  lease  contained  no 
clause  for  a  re-entry." 

5  Burt  V.  French,  70  111.  254. 
Here  the  lease  was  by  parol  and 
we  may  fairly  assume  that  there 
was  no  express  condition  of  for- 
feiture, yet  it  was  held  that  a  for- 
feiture for  default  in  rent  was 
properly  perfected  under  the  Act  of 
1865. 

Observe  also  that  in  Dickenson 
V.  Petrie,  38  111.  App.  155,  and 
Hayes  r.  Lawver,  83  111.  182,  there 
was  not  so  far  as  the  report  shows 
any  condition  of  forfeiture. 

In  Drew  v.  Mosbarger,  104  111, 
App,  635,  it  was  held  in  terms  that 
a  lease  might  be  forfeited  by  a 
ten-day  notice  to  quit  for  a  breach 
of  covenant  to  cut  burrs,  even 
though  there  was  no  express  condi- 
tion of  forfeiture. 

6  Laws,  1873,  p.  118,  119;  E.  S. 
1874,  ch.  80,  sec.  8,  p.  658;  Kurd's 
R.  S.  1903,  ch.  80,  sec.  8,  p.  477. 

'  Observe  that  the  statute  refers 
to  landlords  rather  than  to  leases. 
Will  it,  then,  govern  in  the  ease  of 
a  lease  for  life? 


246 


ClI.  XIII]  CONDITIONAL   ESTATES  [§240 

the  act  of  IHe.j  that  tiie  default  in  payment  of  rent  is  a  cause 
of  forfeiture  even  thouj^h  tlie  lease  contains  no  express  condi- 
tion.   Our  Supreme  (.'ourt  seems  to  have  so  held."^ 

§  239.  Whether  these  acts  have  any  retroactive  effect:  '  Ff 
the  af-ts  of  1865  and  1873  are  sufficient  for  the  purpose  of  cre- 
ating a  forfeiture  of  leaseholds,  even  though  the  lease  contains 
no  express  condition,^"  it  is  difficult  to  see  how  they  can  affect 
any  leas<'s  made  i)ri()r  to  the  time  these  acts  took  effect,  and  in 
which  there  is  no  express  clause  of  forfeiture.  If  the  statutes 
were  held  to  operate  in  such  a  case,  they  would  most  clearly 
change  the  already  existing  contract  of  the  parties.  They  would 
in  fact  impair  it  directly  and  be  unconstitutional. 

TITLE  III. 

WHO  MAY   TAKE  ADVANTAGE  OF  A  BREACH   OF  A   CONDITION 
SUBSEQUENT  AND  WHO  TAKE  SUBJECT  TO  THE  CONDITION. 

§240.  When  attached  to  a  fee  simple:  The  general  rule 
was  that  the  right  of  entry  for  condition  broken  could  only  be 
taken  advantage  of  by  the  grantor  or  his  heirs. '^  So  our  Su- 
preme Court  has  said,'^  and  in  Presbyterian  Church  v.  Ven- 
ahlc  '••  it  was  actually  held  that  a  possibility  of  reverter  upon  the 
dissolution  of  a  corporation  did  not  pass  by  a  devise  prior  to  the 
dissolution.      Nevertheless,    the    court    has   held    (though    uoth- 

8  Farnam  v.  Hohman,  90  111.  239  111.  634.  Observe,  however,  that 
312.  See  also  BeU  v.  Bruhu,  '.W  111.  the  assignee  of  the  dominant  estate 
App.  300.  may    forfeit    an    easement    which    is 

9  See  further  on  this  mutter,  subject  to  a  condition  subsequent: 
post,  §  253.  Reichenbach   i-.   Washington   Ry.,   10 

lojnfe,  §§237,  238.  Wash.  357. 

11  Gray's    Rule    against   Pcrpetui-  12  Board  of  Education  r.  Trustees, 

ties,    §12;    Underbill    v.    Saratoga,  etc.,  63  111.   204,  205.     Observe  also 

etc.,  Ry.  Co.,  20  Barb.  (N.  Y.)  455;  the   language  of   Sexton   v.   Chicago 

Sherman  v.  Town  of  Jefferson,  274  Storage  Co.,  129  lU.  318,  332. 

111.    294;    Green     v.    Old    People's  i3 159  m.  215;  Voris  v.  Renshaw, 

Home,    269    111.    134    (heirs    of    de-  49  HI.  425,  might  have  been  put  on 

visor).     Neither  a  stranger  nor  the  the  ground  that  the  grantee  of  the 

grantee    can    set    up   the    breach    of  heirs   of   the   original    grantor,   who, 

(onditiou:     Joliet  Gas  Light   Co.   1.  a?    was    contended,    had    imposed    a 

Sutherland,  68   111.  App.  230;    Wil-  condition   of  forfeiture,  was   trying 

loughby    V.    Lawrence,    116    HI.    11;  to  take  advantage  of  the  forfeiture, 

Golconda   Ry.  1:.  Gulf  Lines  R.  B.,  if  any. 
265   111.  194;    0 'Donnell    v.   Robson, 

247 


§  241]  FUTURE   INTERESTS  [Ch.  XIII 

iug  was  made  of  the  point  in  either  case)  that  the  right  of 
entry  was  assignable  by  a  general  conveyance  ^^  of  the  land 
■which  was  subject  to  the  condition,  and  that  a  devisee  ^^  of  the 
grantor  could  take  advantage  of  the  breach.  The  latter  holding 
may  possibly  be  supported  on  the  ground  that  the  language  of 
our  statute  of  wills  in  regard  to  what  interest  in  land  may  be 
devised  i*^  is  broad  enough  to  include  the  right  of  entry  for  con- 
dition broken. 

§241.  To  an  estate  for  life  or  years :  Prior  to  the  statute  of 
Hen.  YIII.i"  the  rule  as  to  who  might  take  advantage  of  the 
breach  of  a  condition  subsequent  was  the  same  in  case  of  a 
tenancy  for  life  or  years  as  in  the  case  of  a  fee  simple,— only  the 
feoffor,  or  lessor  and  his  heirs  could  take  advantage  of  the  right 
of  entry  for  condition  broken.i^  By  the  statute  of  Hen.  VIII., 
however,  this  was  altered  and  the  assignee  of  the  reversioner 
was  entitled  to  enforce  a  forfeiture. ^^  This  statute  may  fairly 
be  regarded  as  part  of  the  common  law  of  this  state.^o  In  addi- 
tion we  have  a  further  act  of  1873  -^  which  is  sufficient  to  ac- 
complish the  same  result.22 

A  concurrent  lease  is  ''one  granted  for  a  term  which  is  to 
commence  before  the  expiration  or  other  determination  of  a  pre- 
vious lease  of  the  same  premises  to  another  person.  If  under  seal 
it  operates  as  an  assignment  of  part  of  the  reversion  during  the 

14  Helm  V.  Webster,  85  111.  116,  Co.,  169  111.  112,  116;  Scheldt  v. 
post,  §  290.  Belz,  4  111.  App.  431,  435,  the  right 

15  Gray  v.  Chicago,  M.  &  St.  P.  of  the  assignee  of  the  reversion  to 
By.,  189  111.  400.  In  Boone  v.  sue  for  and  recover  rent  reserved 
Clark,  129  111  466,  498,  the  Court  in  the  lease  under  the  statute  of 
said:  "A  breach  of  a  condition  Hen.  VIII  was  sustained, 
subsequent  can  be  taken  advantage  As  to  how  far  upon  the  assign- 
of  only  by  the  grantor,  his  heirs  or  nient  of  a  remainder  or  reversion 
devisees.'"  attornment  by  the  tenant  in  posses- 
is  Post,  §  325.  sion  is  necessary  in  Illinois  see  post, 
17  32   Hen.  VIII,  c.   34;    Co.   Lit.  §379. 

215a;, 5  Gray's  Cases  on  Property,  21  Laws  1873,  p.  120,  §14;   E.  S. 

2nd    ed.    4;    2    Starr    &   Curtis,    111.  1874,  ch.  80,  sec.  14. 

Stats.    (1896),  p.   2515.  22  Thomasson   v.   Wilson,    146   111. 

T-sAnte,  §240.  384,    389-390;    Fisher   v.    Smith,   48 

19  Infra,  note  20.  .111.   184; .  Springer  v.   Chicago   Real 

20  In  Fisher  v.  Deering,  60  111.  Fstate  ■  Loan  Co.,  202  111.  .  17,  26 
114,  115;  Barnes  v.  Northern  Trust  -.(scm'ble). 

■  248 


ClI.  XIllJ  CONDITIONAL   ESTATES  [§243 

continuance  of  such  previous  lease."--'  It  is  clear  that  the 
holder  of  the  concurrent  lease  has  a  riglit  to  collect  rent  to  be 
I)aid  during  the  then  residue  of  the  term  granted  by  the  first 
lease  and  the  continuance  of  the  concurrent  lease.^*  In  Drew  v. 
Moshargcr  ^-^  the  Appellate  Court  for  the  3rd  district  went 
a  little  farther  and  held  that  the  holder  of  the  concurrent  lease 
could  declare  a  forfeiture  of  the  lease  in  possession  because  of 
the  failure  of  the  tenant  in  possession  to  perform  a  stipulation 
of  his  lease. 

§242.  Who  take  subject  to  the  condition:  In  the  pictur- 
esque language  of  Shepard's  Touchstone.-"  "The  condition  doth 
always  attend  and  wait  upon  the  estate  or  thing  whereunto  it  is 
annexed;  so  that  although  the  same  do  pass  through  the  hands 
of  an  hundred  men,  yet  it  is  subject  to  the  condition  still;  and 
albeit  some  of  them  be  persons  privileged  in  divers  cases,  as 
the  king,  infants,  and  women  covert,  yet  they  are  also  bound  by 
the  condition.-'  And  a  man  that  comes  to  the  thing  by  wrong, 
as  a  disseisor  of  land,  whereof  there  is  an  estate  upon  condition 
in  being,  shall  hold  the  same  subject  to  the  condition  also." 

TITLE  IV. 

EFFECT  OF  THE  BREACH  OF  A  CONDITION  SUBSEQUENT 
AND  MODE  OF  PERFECTING  A  FORFEITURE. 

§  243.  Estate  voidable,  not  void:  The  breach  of  a  condi- 
tion subsequent  does  not  operate  at  once  to  avoid  the  grantee's 
estate,  but  only  enables  him,  in  whose  favor  the  condition  is 
imposed,  to  avoid  the  estate  if  he  so  elects.^^    In  short,  no  mat- 

23  Woodf all,  Landlord  and  Tenant,  paying   rent    under   it :     Webster    r. 

16th   ed.    (1898),   222.  Nichols,    104    111.    160,    171;    Sexton 

2-«7d.  V.  Chicago  Storage  Co.,  129  111.  ;U8, 

25  104  111.  App.  635.  ;i32;      Springer     v.     Chicago     Real 

20Shep.    Touch.    120;     5    Gray's  Estate   Loan  &   Trust  Co.,  202   111. 

Cases  on  Prop.,  2nd  ed.  6.  17    (semblc) ;    Chicago    Attachment 

"^Accord:    Latham  v.  I.  C.  R.  E.  Co.   v.   Davis   Sewing   Machine   Co., 

Co.,  253  111.  93.  S3   111.   App.    362.      In   such   a   case 

28  Thus,    the    assignees    of    lease-  the  lease  is  void  only  at  the  option 

holds     who     take    contrary     to     the  of  the  lessor.     See  also:  Willoughby 

conditions      of      the     lease      cannot  r.  Lawrence,  116  111.  11;  Joliet  Gas 

contend    that    by    that    breach    of  &   Light   Co.   v.   Sutherland,   68   111. 

condition    the    lease    is    ipso    facto  App.    230;    Raybourn    v.    Ramsdell, 

void  and  that  they  are  excused  from  78  111.  622;   Board  of  Eilucation   r. 

249 


^244]  FUTURE   INTERESTS  [Cli.  XIII 

ter  how  strongly  the  words  of  the  conveyance  may  declare  that 
it  shall  be  void  upon  breach  of  the  condition,  it  is  only  voidable. 
This  was  one  of  the  instances  where  the  common  law  undertook 
to  temper  the  harshness  of  forfeit ure.--' 

§  244,  Mode  of  perfecting-  a  forfeiture — Of  freehold  estates : 
It  has  always  been  said  that  to  perfect  a  forfeiture  in  case  of 
freehold  estates  an  entry  was  necessary.-"**  At  the  present  day, 
however,  this  hardly  means  that  there  is  no  right  to  recover 
possession  in  a  proper  action  by  the  grantor  unless  he  has  made 
an  entry.  He  may,  it  seems,  upon  breach  of  the  condition,  at 
once  sue  for  possession.  That  is  in  fact  what  was  done  in  Gray 
V.  Chicago,  M.  d:  St.  P.  Rij.  Co.^^  In  Lijman  v.  Subwhan 
R.  R.  Co.^-  our  Supreme  Court  appears  to  have  approved  this 
in  holding  that  a  suit  in  equity  to  restrain  the  enjoyment  of  an 
alleged  easement  over  the  plaintiff's  land  might  be  maintained 
upon  the  supposition  that  the  alleged  easement  had  been  ter- 
minated by  the  breach  of  a  condition  subsequent  though  no 
entry  had  been  made.^-^  But  where  a  partition  suit  was  filed 
before  any  re-entry  or  other  act  of  forfeiture  occurred  the  bill 
was  properly  dismissed.""* 

§  245.  Of  estates  less  than  freehold— The  common  law 
method  of  forfeitxire:  Where  the  cause  of  forfeiture  was  de- 
fault in  the  payment  of  rent  the  common  law  mode  of  for- 
feiture seems  to  have  required  ' '  a  demand  of  the  precise  amount 
of  rent  due,  neither  more  nor  less;  that  it  be  made  upon  pre- 
cisely the  day  when  due  and  payable  by  the  terms  of  the  lease 
or  if  a  further  day  was  specified  within  which  it  might  be  paid 
to  save  the  forfeiture,  then  upon  the  last  day  of  that  time.  It 
was  required  to  be  made  at  a  convenient  hour  before  sunset. 

Trustees,  etc.,  63  111.  204;  Chadwiek  3^190  111.  320,  329. 

V.  Parker,  44  111.  326,  334.  ^^  In   Mott   v.  Danville  Seminary, 

2^  Post,  §  278.  129  111.  403,  415,  the  court  intimates 

30 Gray 's   Rule   against    Perpetui-  Ihat    "re-entry   or    some    other   act 

ties,    §12;    Board    of    Education  v.  equivalent   to  a  re-entry"   is  neees- 

Trustces,  etc.,  63  111.  204,  205;  Mott  sary  to  entitle  one  to  forfeit  a  free- 

/.   Danville   Seminary,   129   111.  403,  hold  estate. 

415,  416;   Hammond  v.  Port  Royal,  34  Hart  v.  Lake,  273   111.   60.     A 

etc.,  Ry.  Co.,  15  S.  C.  10.  provision  of  forfeiture  may  require 

31  189  111.  400.     See  also,  Hart  v.  notice    to    be    given:     Newcomb    v. 

Lake,   273  111.   60;   Golconda  Ry.   v.  Masters,  287  111.  26. 

fJulf  Lines  R.  R.,  265  111.  194. 

250 


Cir.  XIIJ] 


CONDITIONAL    ESTATES 


§245 


upon  the  land,  at  the  nuj.st  conspicuous  place;  as,  il"  it  were  a 
dwelling  house,  at  the  front  door,  unless  some  other  place  was 
named  in  the  lease,  when  it  was  necessary  to  make  it  at  that 
place.  It  was  required  that  a  demand  should  be  made  in  fact,^'' 
should  be  pleaded  and  proved,  to  be  availing.  The  tenant,  how- 
ever, had  the  entire  day  Avithin  which  to  make  payment."-'" 
A  demand  for  rent  the  day  after  it  was  due  would  not  enable  the 
landlord  to  forfeit  the  lease  for  the  non-payment  of  rent. 

Where  the  forfeiture  was  not  for  default  in  the  payment  of 
rent,  the  mere  breach  of  the  condition  would,  under  Coke's 
statement,"  ipso  facto  end  the  lessee's  estate.  The  common 
law,  however,  in  making  the  term  voidable  only  at  the  option 
of  the  landlord, ^s  seems  to  have  required  at  least  such  act  or 
expression  on  the  part  of  the  lessor  as  amounted  to  the  exercise 
of  an  option  to  take  advantage  of  a  forfeiture. ■'••  The  cases  in 
Illinois  make  it  clear  that  the  mere  bringing  of  a  suit  of  forcible 
detainer  is  a  sutiHcient  declaration  of  forfeiture  and,  if  the  cause 
of  forfeiture  exist,  the  suit  may  be  maintained.*'^  There  may, 
however,  be  a  question  as  to  how  far  a  re-entry,  or  some  act 


35  In  Cliapmau  v.  Kiiby,  49  111. 
211,  215,  the  court  adds:  "Although 
no  person  be  present. ' ' 

36  This  is  taken  from  the  opin- 
ion of  the  court  in  Chadwick  v. 
Parkef,  44  111.  326,  830-331.  Sec 
also  Chapman  v.  Kirby,  49  111.  211, 
215;  Woods  V.  Soucy,  166  111.  407, 
418;  Howlajid  v.  White,  48  111. 
App.  236,  241. 

In  the  absence  of  proceedings 
for  forfeiture  authorized  by  stat- 
utes it  would  seem  necessary  to 
make  a  demand  in  the  above  man- 
ner in  Illinois:  Dodge  i'.  Wright, 
48  111.  382;  Cheney  v.  Bonnell,  58 
111.  268;  Chapman  v.  Wright,  20 
111.  120;  Henderson  v.  Carbondalo 
Coal  Co.,  140  U.  S.  25,  33. 

3TCo.  Lit.  214b;  5  Gray's  Cases 
on  Prop.,  2nd  ed.  3;  Pennant's  Case, 
3  Co.  64a;  5  Gray's  Cases  on 
Prop.,  2nd  ed.  13. 

38  Ante,  §  243. 


39  Watson  V.  Fletcher,  49  111.  498; 
Cheney  v.  Bonnell,  58  111.  268. 

<o  Ballance  v.  Fortier,  3  Gilm. 
(111.)  291;  Fortier  v.  Ballance,  5 
Gilm.  (111.)  41;  Wall  v.  Good- 
enough,  16  III.  415;  Fusselman  v. 
Worthington,  14  111.  135;  McCart- 
ney V.  Hunt,  16  111.  76  (semble). 
See  post,  §  251. 

In  all  of  the  above  cases-  the 
ground  of  forfeiture  was  the  dis- 
claimer of  the  tenant  (ante,  §233). 
No  difference,  however,  is  per- 
ceived between  such  a  cause  of  for- 
feiture and  the  breach  of  an  ex- 
press condition  in  the  lease. 

Observe  that  the  demand  fur  pos- 
session made  before  bringing  the 
action  of  forcible  detainer  in 
Fortier  r.  Ballance,  supra,  was  such 
as  was  required  by  the  forcible  de- 
tainer statute  generally.  (R.  S. 
1845,  ch.  43,  sec.  1.) 


251 


§  246]  FUTURE   INTERESTS  [Ch.  XIll 

equivalent  thereto  ^^  is  necessary  where  the  lease  expressly  pro- 
vides for  forfeiture  by  re-entry. 

§  246.  Effect  of  Illinois  statutes  upon  the  common  law 
method  of  forfeiture — In  case  of  default  in  pajrment  of  rent — 
Act  of  1827:  The  common  law  mode  of  forfeiture  for  default 
in  the  payment  of  rent  •*-  was  very  crude.  It  was  hard  on 
both  landlord  and  tenant.  It  gave  the  tenant  no  time  if  the 
landlord  made  the  proper  demand  and  if  the  landlord  did  not 
make  the  proper  demand  on  the  day  the  rent  fell  due,  he  could 
not  declare  a  forfeiture  at  all  for  that  particular  failure  to  pay 
rent.  The  decree  of  a  court  of  equity  upon  the  bill  of  the  tenant, 
which  gave  the  tenant  a  short  day  wdthin  which  to  pay  the 
amount  due  and  interest  was  more  rational,  and  legislation  has 
developed  along  this  line. 

The  first  act  of  this  sort  in  Illinois  is  to  be  found  in  the  Re- 
vised Statutes  of  1827.43  it  has  remained  among  our  statutes 
until  the  present  time,  appearing  in  the  revisions  of  1845  ^^ 
and  1874  ^^  as  sec.  4  of  the  Landlord  and  Tenant  act.  It  was 
copied  from  an  act  of  Geo.  II.^s  The  language  of  the  Illinois 
statute  is  as  follows :  "In  all  cases  between  landlord  and  tenant, 
where  one-half  year's  rent  shall  be  in  arrear  and  unpaid,  and 
the  landlord  or  lessor  to  whom  such  rent  is  due  has  right  by 
law  to  re-enter  for  non-payment  thereof,  such  landlord  or  lessor 
may,  without  any  formal  demand  or  re-entry,  commence  an 
action  of  ejectment  for  the  recovery  of  the  demised  premises. 
And  in  case  judgment  be  given  for  the  plaintiff  in  such  action 
of  ejectment,  and  the  writ  of  possession  be  executed  thereon, 
before  the  rent  in  arrear  and  costs  of  suit  be  paid,  then  the  lease 
of  such  lands  shall  cease  and  be  determined,  unless  such  lessee 
shall,  by  writ  of  error,  reverse  the  said  judgment,  or  shall  by 
bill,  filed  in  chancery,  within  six  months  after  the  rendition  of 
such  judgment,  obtain  relief  from  the  same:  Provided,  that 
any  such  tenant  may,  at  any  time  before  final  judgment  on 
said  ejectment,  pay  or  tender  to  the  landlord  or  lessor  of  the 
premises  the  amount  of  rent  in  arrear,  and  costs  of  suit,  and 

41  See  ante,  §  244.  *4  R.  s.  1845,  p.  334,  §  4. 

42  Ante,  §  245.  «  R.  S.  1874,  p.  658,  §  4. 

48  R.   S.   1827,  p.   279,   §4;   K.   S.  4o  2   Geo.   II,   ch.    19.     See   Chad- 

1833,   p.    675,   §4;    Gale's    Statutes       wick  v.  Parker,  44  111.  326,  332. 
(1839),  p.  435,  §4. 

252 


Ch.  XIII]  CONDITIONAL   ESTATES  [§  248 

the  proceedings  on  mk-Ii  ejoctment  sliall  tlu'reupon  he  discon- 
tinued." 

§  247.  Sec.  2  of  the  Act  of  1865,'"  appearing  also  as  sec.  9 
of  the  Act  of  1873: 48  Sec.  2  of  the  Act  of  1865  contained  a 
general  provision  for  forfeiture  by  a  ten  day  notice  to  quit 
whenever  "default  is  made  in  any  of  the  terms  of  a  lease." 
This  remained  in  force  as  a  section  of  the  Act  of  1865  till  1873 
when  it  was  incorporated  into  the  act  of  that  year  as  sec.  9 
and  now  appears  in  R.  S.  1874  as  sec.  9  of  chapter  80  on  Land- 
lord and  Tenant. 

Observe  that  this  .section  does  not  in  terms  declare  that  if 
the  tenant  pays  or  tenders  the  rent  within  the  ten  days  there 
will  be  no  forfeiture  of  the  lease.  Our  supreme  court  has, 
however,  clearly  intimated  that  such  is  its  legal  effect. ^^ 

§  248.  Sec.  4  of  the  Act  of  1865.^o  ggg  4  ^f  ^j^g  ^ct  of  1865 
remained  in  force  only  from  1865  to  1874.  It  was  omitted 
from  the  revised  landlord  and  tenant  act  of  1873  and  was  ex- 
pressly repealed  in  1874.^  ^  It  has  not  since  reappeared.  It 
contained  this  provision:  "And  where  the  covenant  of  a  lease 
has  been  violated  by  the  nonpayment  of  rent  when  due,  it  shall 
be  suffieient  for  the  landlord,  his  agent  or  attorney,  to  make 
demand  for  payment  of  rent  due  on  any  day  prior  to  the  com- 
mencement of  his  action  of  forcible  detainer." 

This  clause  simply  declares  that  "it  shall  be  sufficient"  for 
the  landlord  to  make  demand  for  rent  due  on  any  day  prior  to 
the  commencement  of  the  suit.  This  is  the  language  of  an  act 
which  tempers  the  rigor  of  some  other  rule.  Our  Supreme  Court 
has  said  ^2  of  it  that  its  purpose  was  to  simplify  the  common 

4"  Laws     I860,  p.      107;      ante,  feiture  here   prescribed  is  complete 

§§  234,   237.  in    itself    so    that    no    separate    or 

48  Laws  1873,  p.  118,  119;  R.  S.  other  demand  for  rent  need  be  made 
1874,  ch.  80,  sec.  9;  ante,  §§234,  than  that  contained  in  the  notice  to 
237.  quit   and  so  that  it  is  not  affected 

49  Chadwick  v.  Parker,  44  111.  by  sec.  8  of  the  Act  of  1873,  .see 
326,   334,  semhle;  Fisher   r.   Smith,  po.ft,  §  248. 

48  111.   184,  187,  semble;   Chapman  so  Laws  1865,  p.  108,  sec.  4. 

V.  Kirby,  49  111.  211;  Cone  v.  Wood-  •''.i  R.  S.  1874,  p.  1032,  sec.  .536. 

ward,     65     111.     477,     478,    semhle;  r.2  Cone  v.  Woodward,  65  111.  477, 

Leary  v.  Pattison,  66  111.  203,  205-  478.      See   also,  Burt    r.  French,   70 

206,  semble;  Woodward  v.  Cone,  73  111.  254,  255;   Woods  v.  Soucy,  166 

111.  241,  243,  semble.  111.  407,  418. 
As  to  how  far  the  mode  of  for- 

253 


§  248]  FUTURE   INTERESTS  [Ch.  XIII 

la-\v  mode  of  declaring  a  iorfeiture  Avhit'li  requirod  a  demand 
for  rent  on  the  day  it  is  due.''^''  Certainly,  the  only  positive 
effect  that  can  be  drawn  from  the  literal  language  of  the  act 
is  to  make  a  common  law  demand  for  rent  due,  on  any  day 
before  suit  brought,  sufficient  for  the  purpose  of  declaring  a 
forfeiture.  It  would  seem  to  follow,  therefore,  so  far  as  this 
section  is  concerned^'*  that  the  act  leaves  intact  the  power  to 
effect  a  forfeiture  by  a  common  laAv  demand  for  rent  on  the 
day  it  is  due  so  that  a  tender  of  rent  by  the  tenant  on  the  next 
day  will  prevent  the  consequences  of  a  forfeiture  only  by  resort 
to  a  court  of  equity;  for  why  in  the  absence  of  any  express 
provision  abolishing  it,  should  the  more  difficult  mode  of  for- 
feiture, from  which  the  act  was  passed  to  relieve  only  the  land- 
lord be  held  to  be  done  away  with? 

This  question  also  arises:  Does  sec.  4  leave  the  landlord  free 
to*  declare  a  forfeiture  by  the  service  of  a  ten  day  notice  to 
quit  under  see,  2  ^^  without  any  separate  demand  for  rent? 

This,  it  is  submitted,  ought  to  be  answered  in  the  affirmative 
on  the  ground  that  'the  force  of  sec.  4  is  simply  to  give  the 
landlord  power  to  forfeit  the  term  by  a  common  law  demand 
for  rent  on  a  day  after  the  rent  w^as  due;  that  it  does  not  add 
any  new  requirement  of  a  demand  for  rent;  and  that,  there- 
fore, sec.  2  remains  as  a  mode  of  forfeiture  complete  in  itself. 
Sec.  2  reinforces  this  view  by  declaring  that  "no  other  notice 
or  demand  of  possession  or  termination  of  such  tenancy  [refer- 
ring to  the  form  of  notice  prescribed  which  contains  no  express 
demand  for  rent]  shall  be  necessary. "  ^'^ 

It  is  clear  that,  if  any  sort  of  special  demand  for  rent  were 
required  under  sec.  4  it  should  have  been  a  common  law  demand 
so  far  modified  that  it  might  be  made  on  a  day  subsequent  to 
the  day  the  rent  became  due.  We  find,-  therefore,  in  cases  aris- 
ing under  the  act  of  1865,  the  argument  continually  being  made 
that  there  w^as  no  demand  for  rent  on  the  day  it  was  due  and 
no  proof  that  it  was  demanded  on  any  oilier  day,  except  in  so 

5z  Ante    §245.  the  ten  day  notice  to  quit,  the  ten- 
s'* For  the  effect  of  sec.  2  of  the  ant  can  avoid  the  forfeiture  by  pay- 
Act  of  1865  and  sec.  9  of  the  Act  ing    the    rent   due    within   ten   days 
of    187:J   on    the  common   law   mode  (ante,    §247),    there    is    in    fact    a 
of  forfeiture,  see  post,  §  250.  very    substantial    demand    for    rent 
55/l7^fe,  §§  234,  237,  247.  though    it    is    not    according    to    the 
5G  Observe    also    that    since,    upon  common  law  requirements. 

254 


Cli-XJII]  CON'DITIOXAL    ESTATKS  f  §  24fi 

far  as  llie  Icii  day  notice  to  quit  was  a  (Iciiiaiid.  ^^'t  our  Su- 
preme Court  as  often  said  that  no  such  demand  was  ne<"('ssai-y 
and  held  that  mere  notice  to  (juit  under  the  statute  was  sufficnent. 

Thus,  in  Chadwick  v.  Parker  ^^  the  ten  day  notice  to  quit 
under  sec.  2  was  tlie  only  one  given,  and  the  point  was  actually 
urged  that  no  other  demand  for  rent  had  ever  been  made.  Yet 
the  forfeiture  by  tlie  ten  day  notice  to  quit  was  upheld.  The 
court,  by  Walker,  C.  J.,  said:  "We  do  not  under  our  statute 
see  that  it  was  the  duty  of  the  landlord  to  call  u|)on  the  tenant 
for  the  money  at  the  pi-cmises  unless  he  intended  to  declare  a 
forfeiture  under  the  common  law.  "^^ 

The  subsequent  ease  of  Cone  v.  Woodivardr-'-^  is  hard  to  ac- 
count for.  There  the  court  without  in  the  least  noticing  Chad- 
wick V.  I'arker  seems  to  have  readied  an  entirely  opposite 
result.  It  held  that  a  suit  of  forcible  detainer  against  a  tenant 
should  be  dismissed  because  the  complaint  did  not  state  that  a 
demand  for  rent  had  been  made.  The  court  quote  sec.  4  of 
the  act  of  1865  and  say:  "To  create  the  forfeiture  under  the 
statute,  there  must  be  a  default  in  paying  the  rent,  a  demand 
for  the  same,  and  ten  days'  notice  to  quit,  and  a  failure  to  pay 
the  rent  before  the  expiration  of  the  ten  days'  notice.  *  *'  *  In 
this  case  the  plaint  fails  to  state  that  a  demand  for  i-ent  was 
made,  and  in  the  absence  of  such  an  allegation  there  was  no 
right  to  recover."  Presumably,  therefore,  the  complaint  alleged 
the  ten  day  notice  to  quit  and  the  failure  of  the  tenant  to  pay 
in  that  time.  There  would  seem,  then,  to  be  a  difficulty  in 
reconciling  the  case  with  Chadwick  v.  Parker  upon  the  ground 
that  a  ten  day  notice  to  quit  is  sufficient  as  including  a  demand 
for  rent.  Nevertheless,  it  does  not  seem  probable  that  our 
Supreme  Court  intended  to,  or  did  hold  a  rule  different  from 
that  of  Chadwick  %k  Parker.  Mr.  Justice  Walker  gave  the  opin- 
ion of  the  court  in  Chadwick  v.  Parker  and  Woodward  v.  Cone, 
and  again  in  Biirt  v.  French. ^^  In  the  fir.st  and  last  of  these 
three  cases  the  view  was  clearly  taken  that  no  demand  for  rent 
is  necessary  when  there  has  been  a  ten-day  notice  under  the 
statute. 

57  44  111.826.  G9  6o    111.    477.      Sec    also    Woo-l- 

osLeary  v.  Pattison,  66  111.  203;        ward  v.  Cone,  7:5  111.  241,  24;?. 

Burt   V.   French,    70    111.    254;  Wil-           so  70   111.    254    (decided   one   year 

liams    V.    Vanderbilt,    145    111.  238,       after  Woodward  v.  Cone). 
247,  accord. 

255 


249]  FUTURE   INTERESTS  [Ch.  XIII 


111  the  comparatively  recent  case  of  Woods  v.  Soucy,^^  by 
■way  of  dictum  merely,  the  majority  of  the  court  intimated  and 
seemed  to  concede,  that,  under  sec.  4  of  the  act  of  1865,  such 
a  demand  was  necessary  in  addition  to  any  ten  day  notice  to 
quit  under  sec.  2.  Speaking  of  the  effect  of  sec.  4  the  court 
says:  "When  the  landlord  sought  to  forfeit  a  lease  for  non- 
pajTnent  of  rent  he  must  still  make  a  demand  therefor,  though 
not  in  conformity  with  the  strict  requirements  of  the  common 
law.  *  *  *  "In  support  of  this  the  court  cites  both  Chadwick 
V.  Parker  and  Woodwa?'d  v.  Cone,  and  then  unaccountably  says, 
speaking  of  sec.  9  of  the  act  of  1873 :  "  It  is  clear  the  meaning 
of  the  words  'no  other  notice  shall  be  necessary'  for  the  ter- 
mination of  a  tenancy  as  used  in  sec.  9  is  to  exclude  the  idea 
that  there  must  be  a  demand  of  payment  and  notice  of  termina- 
tion of  the  tenancy,  as  in  section  8."  Now  as  sec.  9  of  the  act 
of  1873  is  identical,  including  the  words  quoted,  with  sec.  2 
of  the  act  of  1865,  and,  as  sec.  8  of  the  act  of  1873  requires  a 
demand  for  rent  much  as  sec.  4  of  the  act  of  1865  did,  one 
wonders  why  the  court  intimated  that  a  demand  for  rent  in 
addition  to  the  ten  day  notice  to  quit  was  necessary  under  the 
act  of  1865. 

§  249.  Sec.  8  of  the  Act  of  1873:  The  text  of  this  section 
has  been  given  above.*^-  It  appears  in  our  statute  book  for  the 
first  time  in  1873.  It  operated  only  in  case  of  default  in  the 
payment  of  rent  and  in  that  case  it  was  fully  effective.^  ^  qjj. 
serve,  also,  that  it  does  not  take  away  the  right  to  declare  a 
forfeiture  for  nonpayment  of  rent  by  a  ten  day  notice  to  quit  °^ 
under  sec.  9  of  the  act  of  1873 ;  nor  is  the  right  to  effect  a  for- 
feiture under  sec.  8  of  the  act  of  1873  in  any  way  modified  by 
the  presence  of  sec.  9.^^ 

§  250.  How  far  has  a  forfeiture  by  a  common  law  demand 
for  rent  been  abolished  by  the  Acts  of  1827,  1865,  and  1873 : 

C1166  111.  407.  App.   236;    Lemp   Brg.   Co.   v.   Lon- 

fi2  A7ite,  §  238.  ergan,  72  111.  App.  223. 


C3  Farnam  v.  Hohman,  90  111.  312 
Espen  V.  Hinchliffe,  131  111.  468 
Johannes  v.  Kielgast,  27  111.  App 
576;  Bell  v.  Bruhn,  30  111.  App 
300;     Howland    v.    White,    48    111 


B4  Woods  V.  Soucy,  166  111.  407; 
Dickenson  v.  Petrie,  38  111.  App. 
155. 

0^  Lemp  Brg.  Co.  v.  Lonergan,  72 
111.   App.   223. 

256 


ClI.  XIIIJ  CONDITIONAL    ESTATES  [§-•'^1 

If  the  act  of  1827""  deprived  the  landlord  of  power  to  effect 
a  forfeiture  by  a  common  law  demand  for  rent  on  the  day  it 
was  due,  it  did  so  only  in  the  narrow  line  of  cases  where  the 
act  of  1827  applied."'  On  the  othei-  hand  if  sec.  2  of  the  act  of 
1865,"**  afterwards  appearing  as  sec.  fJ  of  the  act  of  1878,  oper- 
ated to  forbid  a  forfeiture  by  the  common  law  demand  for 
rent,  then,  since  that  section  applied  in  all  cases  of  default 
in  the  payment  of  rent,  the  whole  common  law  mode  of  for- 
feiture must  have  been  abolished. 

The  language  of  sec.  2  does  not,  in  terms,  forbid  a  forfeiture 
by  a  common  law  demand.  It  may  be  argued,  however,  that, 
as  a  forfeiture  by  that  mode  bore  hardly  upon  both  the  land- 
lord and  the  tenant,  sec.  2  was  passed  for  the  relief  of  both, 
and  that,  to  permit  it  to  give  the  landlord  a  more  convenient 
mode  of  forfeiture  without  at  the  same  time  depriving  him  of 
the  power  of  forfeiting  according  to  the  common  law  mode, 
would  be  to  construe  the  act  as  exclusively  for  the  benefit  of  the 
landlord. 

Between  1865  and  1873  there  was  a  difficulty  with  this  rea- 
soning because  of  the  presence  on  the  statute  book  of  sec.  4 
of  the  act  of  1865  which  assumed  the  possibility  of  a  forfeiture 
by  means  of  the  common  law  demand  for  rent  and  simply  modi- 
fied its  requirements  for  the  benetit  of  the  landlord  alone,  leav- 
ing a  common  law  demand  to  be  made  if  the  landlord  chose 
to  use  it.'''*  In  1873,  however,  sec.  4  of  the  act  of  1865  was 
dropped  from  our  statute  book  and  since  then  there  would 
seem  to  be  no  reason  why  w^c  cannot  regard  the  common  law- 
mode  of  forfeiture  upon  default  in  the  payment  of  rent  as 
abolished. 

§  251.  For  cause  other  than  default  in  the  payment  of  rent — 
Sec.  2  of  the  Act  of  1865.^"  appearing  afterwards  as  sec.  9  of 
the  Act  of  1873:  "'     This  section  only,  of  all  the  three  above 

ecA«<c,  §246.  <•><  Ante,  §§2:57,  2;"il, 

«"  The    cases    under    the    similar  '-'^  Ante,  §248. 

English  statute  seem   never  to  have  ''^  Laws  I860,  p.  107;  (inte,  §§  2;>4, 

decided    whether    the    common    law  237,  247. 

mode    of    forfeiture    is    forbidden:  7 1  Laws   1873,   p.   118,  119;    R.   S. 

Woodfall,  Landlord  and  Tenant,  ;5:57-  1874,   ch.   80,   sec.    9;    ante,    §§234, 

341,  16th  ed.    (1898).  237,  247. 
Kales  Fut.  Int. — 17                            057 


§  251 J  FUTURE    INTERESTS  [Ch.  XIII 

mentioned  acts  of  1827,'-  1865,"=^  and  1873,"^  applied  to  for- 
feitures for  causes  other  than  the  nonpayment  of  rent.  Must 
one,  then,  upon  tlie  breach  of  a  condition  other  than  default 
in  the  payment  of  rent,  give  the  ten  day  notice  to  quit  under 
this  section  to  the  exclusion  of  the  common  laAv  method  of  simply 
exercising  an  option  by  any  clear  act,  as,  for  instance,  bringing 
suit  for  possession?  In  two  cases  at  least  such  a  ten  day  notice 
was  given  and  the  court  seems  to  approve  the  necessity  of  that 
procedure  by  discussing  tlie  question  of  whether  the  notice  was 
properly  given  or  not.'-^  In  another  the  lessor  simply  served  a 
Avritten  notice  referring  to  the  ground  of  forfeiture  and  declar- 
ing that  he  had  elected  to  terminate  the  lease  and  demanded 
possession  of  the  premises.'*'-  It  does  not  appear  that  either 
of  these  formalities  were  held  to  be  necessary.  They  were  steps 
taken  out  of  abundant  caution  merely.  In  a  line  of  cases  where 
the  ground  of  forfeiture  was  the  disclaimer  of  the  tenant,  there 
was  apparently  no  act  on  the  part  of  the  landlord  except  the 
bringing  of  the  action  for  possession.""  In  one  of  these  "*  the 
Supreme  Court  said  no  notice  to  quit  was  necessary."^  In 
Medinah  Temple  Co.  ik  Currey  ^^  the  landlord's  only  act  was 
to  petition  the  county  court  in  which  the  tenant's  voluntary 
assignment  proceedings  Avere  j^ending,  to  enforce  a  forfeiture 
for  default  in  assigning  without  permission.  In  an  appellate 
court  ease  ^^  the  landlord  seems  to  have  done  no  other  act  than 
that  of  entering  upon  the  possession  of  the  tenant  and  putting 
him  out.  Yet  the  forfeiture  was  complete  by  this  evident  ex- 
ercise of  his  option  by  the  lessor. 

"2  Ante,  §  246.  '^  It  may,  of  course,  be  said  that 

73  Ante,  §  237.  the    forfeiture    in    these    cases    was 

T*  Ante,  §238.  not  for  default  in  "the  terms  of  a 

"5  Consolidated  Coal  Co.  v.  Schae-  lease ' '  to  which  alone  see.  2  of  the 

fer,  135  111.  210;  Thomasson  v.  Wil-  Act  of  1865   and  sec.  9  of  the  Act 

son,    146   111.   384.      See   also   Dock-  of  1873  refer.     It  is  true  that  the 

rill  V.  Schenk,  37  111.  App.  44.  default    is    not   in   an   express   con- 

76  Kew  V.  Trainor,  150  111.  150.  dition   of   the   lease,   but    is    it   not 

77  Cox  i;.  Cunningham,  77  111.  545;  within    the    broader    phrase    "any 
Doty  V.  Burdick,  83  111.  473;   Har-  terms"  of  the  lease? 

din   V.    Forsythc,    99    111.    312;    Mc-  so  162  111.  441. 

Ginnis   v.   Fernandes,   126   111.   228;  si  White  v.  Naerup,  57   111.   App. 

ante,  §  245,  note  40.  114. 

78  McGinnis  v.  Fernandes,  126  111. 
228.  But  comj)are  with  this, 
Cheney  v.  Bonnell,  58  111.  268. 

258 


Ch.  XIII]  CONDITIONAL    ESTATES  [§253 

It  does  not  seem  ultogetlier  dcai-,  tlu'relort',  that  see.  2  ol" 
the  act  of  1865  and  see.  9  of  the  act  of  1873  absolutely  require 
a  ten  day  notice  to  (init  in  cases  where  the  forfeiture  is  for 
causes  other  than  nonpayment  of  rent. 

§252.  How  demand  may  be  made  or  notice  served:  This 
A\^as  provided  for  in  section  .'}  of  the  act  of  18(35*^-  and  the 
method  there  indicated  applied  of  course,  only  to  forfeitures 
declared  under  sec.  2  of  that  act.'*-''  The  landlord  and  tenant 
act  of  1873^4  contained  not  only  sec.  2  of  the  act  of  1865  (in- 
.serted  as  see.  9)  but  also  a  new  section  (8).  It  incorporated 
likewise,  as  sees.  10  and  11,  sec.  3  of  the  act  of  1865  respecting 
the  service  of  notices.  Jn  this  form  sees.  10  and  11  clearly 
applied  to  forfeiture  by  a  ten  day  notice  under  the  preceding 
sec.  9.  They  applied -also  to  forfeiture  under  sec.  8.  Section 
10  is  as  follows:  "Any  demand  may  be  made  or  notice  served 
by  delivering  a  written  or  printed,  or  partly  written  and  printed, 
copy  thereof  to  the  tenant,**^  or  by  leaving  the  same  with  some 
person  above  the  age  of  twelve  years,  residing  on  or  in  pos- 
session of  the  premises ;  ^^''  and  in  case  no  one  is  in  the  actual 
possession  of  said  premises  then  by  posting  »'  the  same  on  the 
premises. ' '  ^** 

§  253.  Retroactive  effect  of  the  Acts  of  1827,^''  1865,'"'  and 
1873:  •'!  In  Chapmun  v.  Kirby^-  our  Supreme  Court  expressly 
declined  to  give  an  opinion  upon  whether  the  act  of  1865  could 
govern  leases  entered  into  before  the  passage  of  that  law.  In 
Woods  V.  Soucy  ''•'  it  held  that  so  far  at  least  as  sec.  2  of  the 
act  of  1865  provided  merely  a  mode  of  effecting  a  forfeiture 
for  nonpayment  of  rent,  it  might  operate  in  regard  to  a  lease 

82  Laws  of  1865,  p.   107,   §  3.  serve    process,    his    return    shall    be 

83  Ball  V.  Peck,  43  111.  482.  2'''^^^(t   facie   evidence    of    the   facts 
8«Laws  1873,   p.   118,   119;    R.  S.       therein  stated,  and   if  such  demand 

1874,  ch.  80,  p.  658.  is    made    or    notice    served    by    any 

85  Henderson    v.    Carbondale    Coal  person    not    an    officer,    the    return 

&  Coke  Co.,  140  U.  S.  25    (ten  day  may  be  sworn  to  by  the  person  serv- 

notice  by  mail  not  proved).  ing    the    same,    and    shall    then    be 

86Farnam  v.  Hohman,  90  111.  312;  prima   facie   evidence    of   the    facts 

Bell  V.  Bruhn,  30  111.  App.  300.  therein  stated. ' ' 

87  Consolidated  Coal  Co.  v.  Schae-  «»  Ante,  §  246. 
fer,  135  111.  210.  ^o  Ante,   §237. 

88  Sec.    11     reads:      "When    any  ai  Jnfp,  §  238. 
such    demand    is    made    or    notice  ^- -id  111.  211,  216. 
served    by   an    offl^-er  authorized    to  »■■  166   111.   407,   416-417. 

259 


§  254]  FUTURE   INTERESTS  [Ch.  XIII 

entered  into  before  1865.  The  lease  involved  in  that  ease  con- 
tained a  clause  of  forfeiture  for  default  in  the  payment  of  rent, 
so  that  the  act  of  1865  was  not  given  any  retroactive  operation 
■\vhieli  would  result  in  the  creation  of  a  cause  of  forfeiture  which 
was  not  expressly  provided  for  by  the  act  of  the  parties.  Nor 
coukl  the  act  of  1865  be  given  any  such  retroactive  operation 
Avithout  impairing  the  obligation  of  the  contract  of  lease.^^  If 
however,  the  act  be  construed  to  have  a  retroactive  effect  as 
far  as  the  mode  of  creating  a  forfeiture  is  concerned  it  is  diffi- 
cult to  see  whj'  it  must  not  equally  be  construed  to  have  a  retro- 
active effect  so  far  as  the  creation  of  a  new  cause  of  forfeiture 
goes.  But,  if  so  construed,  it  is  void  as  far  as  the  latter  effect 
is  concerned  and,  since  both  applications  of  the  act  are  in- 
separable,^'^  the  whole  must  be  bad.  The  way  to  have  met  this 
difficulty  Avould  have  been  to  hold  either  that  the  act  had  no 
retroactive  effect  of  any  kind,  or  else  that  it  had  no  effect  at 
all  unless  there  was  an  express  condition  of  forfeiture  in  the 
lease.  In  Woods  v.  Soucy  our  Supreme  Court  refused  to  take 
the  former  step  and,  in  cases  which  Ave  have  already  examined, 
it  has  refused  to  take  the  latter .^^ 

§  254.  Method  of  perfecting  a  forfeiture  as  altered  by  the 
agreement  of  the  parties — Provisions  for  the  benefit  of  the 
landlord:  (1)  Suppose  he  has  a  responsible  tenant  who  wants 
to  quit:  If  he  declares  a  forfeiture  that  is  exactly  what  the  ten- 
ant desires.  On  the  other  hand,  if  the  landlord  accepts  posses- 
sion of  the  premises  from  the  tenant  the  claim  will  be  made  that 
the  lease  has  been  terminated  by  a  surrender.''^  The  first  of 
these  difficulties  has  been  overcome  by  a  provision  for  entry 
by  the  landlord  without  forfeiture.^' «     The  second  might  con- 

94  Ante,  §239.  '       06  Ante,  U  2S7,  2'.i8. 

05  Cooley,  Constit.  Lim.,  1st  ed.,  o^  West  Side  Auction  Co.  v. 
pp.  178-179;  People  v.  Cooper,  8:5  Conn.  Mut.  Life  Ins.  Co.,  186  111. 
111.  585,  595;  Hinze  v.  People,  92  156;  Marshall  v.  Grosse  Clothing 
111.  406,  424;  People  v.  Martin,  178  Co.,  184  111.  421;  Humiston,  Keel- 
Ill.  611,  625;  People  v.  Knopf,  183  ing  &  Co.  v.  Wheeler,  175  111.  514. 
Ill,  410,  422;  Noel  v.  People,  187  98  Grommes  v.  St.  Paul  Trust  Co., 
111.  587,  597;  Donnersberger  v.  147  111.  634;  Helms  Brg.  Co.  v. 
Prendergast,  128  111.  229,  234;  Flannery,  137  111.  309.  Cf.  Jo- 
People  V.  Hazelwood,  116  111.  319  hannes  v.  Kielgast,  27  111.  App.  576. 
326;  Strong  v.  Dignau,  207  111.  385, 
394. 

260 


Ch.  XIII]  '  CONDITIONAL   ESTATES  [§257 

ceivably  be  obviatetl  by  a  clause  that  any  surrender  shall  be  in 
writing  signed  by  the  party  to  be  charged.'"^ 

(2)  When  an  irresponsible  tenant  pays  no  rent  and  under- 
takes to  keep  possession  he  is  met  by  clauses  providing  for  for- 
feiture without  entry,  without  demand  for  rent  and  without 
notice  to  ((uit.' 

§  255.  Provision  for  the  protection  of  the  tenant :  No  rea- 
son is  perceived  wiiy  the  common  law  and  statutory  modes  of 
forfeiture  may  not  be  done  away  with  by  mutual  agreement  for 
tlie  benefit  of  the  tenant  as  well  as  of  the  landlord.  Thus,  it 
may  be  provided  (and  this  is  especially  appropriate  in  long 
leases),  that  a  forfeiture  shall  occur  only  upon  a  longer  notice 
than  that  provided  by  the  statute;  and  this,  it  is  submitted, 
will  exclude  any  forfeiture  npon  a  five  or  ten  day  notice.^ 

TITLE  V. 
REMEDY   IN   CASE  OF   FORFEITURE  DULY  PERFECTED. 

§  256.  By  ejectment  or  forcible  detainer  suit:  An  action  of 
ejectment  would  seem  to  be  an  appropriate  remedy  in  all  cases 
of  forfeiture  duly  perfected.  Where  a  fee  simple  has  been  for- 
feited, forcible  entry  and  detainer  may  not  be  available,  since 
the  forcible  entry  and  detainer  statute  provides  a  summary  rem- 
edy for  possession  in  case  of  forfeiture  only  "when  any  lessee 
of  the  lands  or  tenements,  or  any  person  holding  under  him, 
holds  possession  without  right  after  the  determination  of  the 
lease  or  tenancy  by  its  own  limitation,  condition  or  terms,  or  by 
notice  to  quit  or  otherwise. ' '  ^ 

§  257.  Actual  entry  upon  the  land— Action  of  forcible  entry 
and  detainer  for  possession  by  the  one  put  out — Introductory: 
A  forfeiture  having  been  duly  perfected,  how  far  may  the 
grantor  or  landlord  physically  enter  and  take  possession?     To 

90  Perhaps    this    would    not    help  245 ;  Belinski  v.  Brand,  76  III.  App. 

matters   much    for    it    might    fairly  -lO-l;  Mueller  v.  Kuhu,  46  111.   App. 

be  contended  that  the  parties  could  496.      See,    however,    Woodward    v. 

waive  such  a  clause  by  mutual  agree-  Cone,    73    111.    241,   where    the    lan- 

ment,  and  that  the  acts  relied  upon  guage  of  the  lease  was  not  sufficient 

as    a    surrender    by    mutual    assent  to  constitute  a  waiver, 
could   be  used   also   to  show   sui-h   a  -  Crandall    i'.    Sorg,    99    III.    App. 

waiver.  --• 

1  Espen  I'.  Hinchliffc,  131  111.  468;  3  R.  S.  1874,  ch.  57,  sec.  1,  §  4. 

Williams  v.  Vandorbilt,  145  111.  238, 

261 


§  258]  FUTURE   INTERESTS  [Ch.  XIII 

answer  tliis  (juosl  ion  let  us  suppose  that  he  does  actually  enter 
and  take  possession.  AVill  he  have  any  defence  to  the  several 
actions  which  the  one  put  out  may  bring  against  him  ?  Sup- 
pose an  action  of  forcible  entry  is  brought.  Is  it  any  defence 
that  at  the  time  the  defendant  entered,  a  forfeiture  had  been 
perfected  and  lie  had  a  right  to  possession? 

§  258.  Where  the  entry  is  forcible— Before  1872 :  The  an- 
swer to  the  question  of  the  preceding  paragraph  must  depend 
upon  the  construction  to  be  given  our  forcible  entry  and  de- 
tainer statutes. 

Up  to  1872  the  form  of  the  act  so  far  as  it  touches  the  present 
problem  followed  the  tirst  section  of  the  act  of  1827.^  It  was 
this :  "If  any  person  shall  make  any  entry  into  any  lands,  ten- 
ements or  other  possessions,  except  in  cases  where  entry  is  given 
by  law,  or  shall  make  any  such  entry  by  force,  *  *  *  such 
person  shall  be  adjudged  guilty  of  a  forcible  entry  and  de- 
tainer *  *  *  "  It  was  further  provided  that  if  the  defendant 
be  found  guilty,  judgment  should  be  given  "for  the  plaintiff  to 
have  restitution  of  the  premises. ' ' 

By  the  literal  language  of  this  act,  a  forcible  entry  by  one 
having  the  immediate  right  to  possession  gave  to  the  one  put 
out  the  statutory, remedy  for  repossession,  yet  this  was  an  absurd 
re.sult,  for  when  accomplished  it  simply  produced  further  liti- 
gation, viz.,  an  action  of  forcible  entry  and  detainer  or  ejectment 
against  the  person  who  had  just  been  restored  by  judicial  process 
to  an  unlawful  possession.^  It  has  even  been  said  that  the  effect 
of  such  a  construction  of  the  act  was  to  produce  in  some  degree 
the  evil  sought  to  be  avoided,  by  encouraging  the  scramble  for 
a  possession  which,  however  defective  the  title  upon  which  it  was 
founded  might  be,  could  only  be  attacked  by  an  action  involving 
the  validity  of  the  plaintiff's  title.^  Perhaps  such  a  result  was 
impossible  under  the  English  statutes  on  forcible  entry  and  de- 

*K.  S.  1827,  p.  230;   E.  S.  18:53,  5  "Right  of  a  Landlord  to  Regain 

p.  311;   E.   S.   1839,  p.   313;   E.   S.  Possession  by  Force,"  4  Am.  Law 

1845,  ch.   43,  p  256;    Gross'   Stats.  Eev.    429,    447;    dissenting    opinion 

of  111.,  vol.  1,  ch.  43,  p.  299;  super-  of  Mills,  J.,  in  Chiles  v.  Stephens, 

seded    by   Forcible    Entry   and    De-  3  A.  K.  Marshall   (Ky.),  340,  350. 

tainer  Act  of  1872  (Gross'  Stats,  of  «" Eight  of  a  Landlord  to  Eegain 

111.,    vol.    2,    eh.    43,   p.    187).      Ke-  Possession  by  Force,"  4  Am.  Law 

pealed  in  terms  by  E.  S.  1874,  ch.  Eev.  429,  447. 
57,  sec.  21. 

262 


CU.  XllI]  COXDITIONAL   ESTATLS  *  [§2;')!! 

tainer,  for  those  acts  liad  a  distinct  criminal  character  and  opera- 
tion by  which  the  one  liaving  the  right  to  possession  might  be 
punished  for  a  forcible  entry,  even  though  he  were  not  restored 
to  possession.^  Furthermore,  restitution  under  the  English  acts 
was  never  awarded  "except  to  a  freeholder  under  the  stat.  8 
Hen.  VI.,  or  to  a  tenant  for  years  under  the  stat.  21,  Jac.  I.,"  ^ 
and  where,  under  these  statutes,  a  writ  of  restitution  was  sought, 
"it  was  requisite  for  the  title  of  the  plaintiff  to  be  truly  set 
out,  and  mere  possession  made  a  prima  facie  title,  only  if  not 
traversed.'''^  The  Illinois  forcible  entry  and  detainer  act  of 
1827,  however,  was  not  in  character  or  operation  a  criminal  stat- 
ute ;  nor  did  it  limit  the  right  of  restitution  in  any  way  so  as  to 
exclude  the  case  where  the  plaintiff  had  no  right  to  possession. 
Perhaps,  then,  there  was  no  alternative  but  to  follow  the  lan- 
guage of  the  act  and  restore  to  a  wrongful  possession  the  one 
forcibly  put  out  by  him  who  had  the  immediate  right  to  posses- 
sion.   At  all  events  that  is  what  our  Supreme  Court  did.^" 

§  259.  Since  1872 :  In  1872  our  forcible  entry  and  detainer 
statute  was  fundamentally  changed,^ ^  being  altered  to  conform 
pretty  closely  to  the  provision  of  the  Massachusetts  act  of  1836,^- 
then  in  force  in  that  state  as  chap.  137  of  the  Gen.  Stats,  of 
1860.^^     Sec.  1  of  the  Illinois  act  follows  word  for  word  see.  1 

"  Turner  v.  Meymott,  1  Bing.  158  of  a  Landlord  to  Eegain  Possession 

(semble) ;   Taunton  v.  Costar,  7  T.  by   Force, ' '   4   Am.   Law  Eev.  429, 

R.    431    (semble);    Taylor    v.    Cole,  437;  1  Hawkins,  Pleas  of  the  Crown, 

3  T.  R.  292  (semble).  495,  see.  3. 

8  "Right    of    a   Landlord    to    Re-  lo  Baker    v.    Hays,    28    111.    387; 

gain   Possession  by  Force,"  4   Am.  Shoudy  v.  School   Directors,   32   111. 

Law  Rev.  429,  446.     See  also,  F.  N.  290;    Smith   v.   Hoag,   45   111.   250; 

B.,  248  H.     Cf.     1  Hawkins,  Pleas  Huftalin  v.  Misner,  70  111.  205.    See 

of  the  Crown,  508,  sec.  47  (chap.  ^^^^  chiles  v.  Stephens,  3  A.  K. 
28  of  Forcible  Entries  and  Detain 


Marshall  (Ky.),  340:  "Right  of  a 
Landlord  to  Regain  Possession  by 
Force,"  4  Am.  Law  Rev.  429,  446, 
citing  Krevet  v.  Meyer,  24  Mo.  107 


ers). 

9  Rex  V.  Wilson,  8  T.  R.  357,  360; 
2  Chit.  Crim.  Law,   1136.     See  also 
"Right    of    a    Landlord    to    Regain 
Possession  by  Force,"  4  Am.   Law       ^"^   ^^^^    '•    ^t-   Louis   Gas   Light 
Rev.  429,  446.  Co.,  34  Mo.  34. 

It   seems    clear   the    one   forcibly  i' Gross'  111.  Stats.  Vol.  2  (1871- 

put  out  had  no  qui  tarn  action  for       1872)    Ch.  43,  p.    187;    R.    S.   1874 
damages    under    the    English    stat-       Ch.  57,  p.  535. 
utes  if  the  defendant  showed  a  right  ^-  R-  S.  Mass.  (1836)  Ch.  104. 

to   possession   in    himself:      "Right  i^S'ee     also     Pub.     Stats.     Mass. 

263 


§  259]  FUTURE   INTERESTS  [Ch.  XIII 

of  the  IMassaehiisetts  aet.^*  It  reads:  "No  person  shall  make 
an  entiy  into  lands  or  tenements  except  in  cases  where  entry 
is  allowed  by  law,  and  in  such  cases  he  shall  not  enter  with  force 
but  in  a  peaceable  manner,"  See.  2  of  the  Illinois  act  is  modeled 
upon  sec.  2  of  the  Massachusetts  statute  as  it  appears  in  R.  S. 
(Mass.  1836)  ch.  104,  and  in  Genl.  Stats.  (Mass.  1860),  ch. 
23'7  15  This  is  the  section  which  actually  gives  the  remedy  for 
restitution  or  possession  in  certain  cases.  The  Illinois  statute 
provides  in  part  as  follows :  "  §  2.  The  person  entitled  to  the 
possession  of  lands  or  tenements,  may  be  restored  thereto  in  the 
manner  hereinafter  provided :  First — When  a  forcible  entry  is 
made  thereon.  Second — When  a  peaceable  entry  is  made  and 
the  possession  is  unlawfully  withheld."  Like  the  Massachusetts 
acts  ^^  the  Illinois  statute  provides  in  sec.  5  that  the  complaint 
shall  be  made  by  the  party  "entitled  to  possession."  Like  the 
Massachusetts  acts  ^"^  the  Illinois  statute,  in  sections  13,  14  and 
16,  provides  that  the  plaintiff  shall  have  an  execution  for  pos- 
session "if  it  shall  appear  that  the  plaintiff  is  entitled  to  pos- 
session, ' '  and  ' '  if  the  plaintiff  is  non-suited  or  fails  to  prove  his 
right  to  possession,  the  defendant  shall  have  judgment." 

In  the  recent  Massachusetts  case  of  Page  v.  Dwight  ^^  it  was 
held  that  since  1836,  with  the  exception  of  one  year  from  1851 
to  1852,  it  had  been  the  law  under  the  Massachusetts  forcible 
entry  and  detainer  statutes  that  one  forcibly  put  out  by  another, 
(the  latter  having  the  immediate  right  to  possession)  could  not 
bring  forcible  entry  and  detainer.  The  court  conceded  that 
under  the  early  laws  of  Massachusetts  ' '  every  forcible  entry  by  a 
private  individual  was  unlawful,  and  might  subject  him  to  pun- 
ishment, and  that  in  addition,  in  most  cases,  the  person  forcibly 
put  out  of  possession  might  be  put  back  by  legal  proceedings 

(1882),  Ch.  175;   Kev.  Laws  Mass.  sec.   4;    Genl.   Stats.   Mass.    (1860), 

(1902),  Ch.  181.  Ch,  137,  sec.  5;   Pub.   Stats.  Mass. 

14  R.  S.  Mass.  (1836),  Ch.  104,  (1882),  Ch.  175,  sec.  2;  Rev.  Laws 
sec.    1;    Genl.    Stats,   Mass.    (1860),  Mass.  (1902),  Ch.  181,  sec.  2. 

Ch.   137,  sec.   1;    Pub.   Stats.  Mass.  it  R.    s.    Mass.    (1836),   Ch.    104, 

(1882),  Ch.  126,  sec.  15;  Eev.  Laws  sees.    6   and    7;    Genl.    Stats.   Mass. 

Mass.  (1902),  Ch.  136,  sec.  15.  (1860),  Ch.  137,  sees.  7  and  8;  Pub. 

15  See  also  Pub.  Stats.  Mass.  Stats.  Mass.  (1882),  Ch.  175,  sec.  5; 
(1882),  Ch.  176,  sec.  1,  and  Kev.  Rev.  Stat.  Mass.  (1902),  Ch.  181, 
Laws  Mass.   (1902),  Ch.  181,  sec.  1.  sec.  3. 

ifiR.    S.    Mass.    (1836),    Ch.    104,  is  170  Mass.  29. 

264 


Ch.  XIII]  CONDITIONAL   ESTATES  [§259 

without  regard  to  the  question  of  the  true  title  or  right  of  pos- 
session."   Tliis  was,  however,  changed  by  R.  S.  (Mass.  1836),  ch. 
104,  which  provided  that  only  "the  person  entitled  to  posses- 
sion" might  be  restored  to  it.    "This  language,"  the  court  say.s, 
"seems  to   leave   without   remedy   under  the  statute   the   case 
where  one  not  legally  entitled  to  possession  is  forcibly  put  out 
by  the  true  owner,  or  by  one  entitled  to  possession ;  for  in  such 
case  the  party  forcibly  put  out  is  not  a  'person  entitled  to  the 
premises, '  and  by  the  terms  of  the  statute  such  persons  only  are 
to  be  restored."    Benjamin  R.  Curtis  and  others,  commissioners 
to  revise  and  reform  proceedings   in  courts  of  justice,  recog- 
nized this  effect  of  R.  S.  ch.  104  and  recommended  a  change 
back  to  the  rule  of  the  earlier  statutes.     This  was  accomplished 
by  an  act  of  1851  which  was,  however,  repealed  after  a  year, 
and  R.  S.  ch.  104  again  became  the  law  of  Massachusetts.    It  was 
embodied  in  Massachusetts  Genl.  Stat.   (1860),  ch.  137,  and  it 
was  from  this,  in  all  probability,  that  our  Illinois  forcible  entrj' 
and  detainer  act  of  1872  was  modeled. i''     The  holding  in  Page 
r.  Dwight  was  rested  by  the  ^lassachusetts  court  upon  those  very 
features  of  the  Massachusetts   statute  which  were  copied  into 
the  Illinois  act  of  1872,  viz.,  that  it  is  provided  in  terms  that 
"the   person  entitled  to  the   premises  may  recover  possession 
thereof,"  that  if  it  appears  "that  the  plaintiff  is  entitled  to  the 
possession  of  the  premises,  he  shall  have  judgment  and  execution 
for  the  possession  and  for  his  costs";  that  "such  person  may 
take     *     *     *     a  writ, ' '  that  is  to  say,  ' '  the  person  entitled  to 
the  premises,"  as  stated  in  the  section  preceding;  and  that  it  is 
provided  that  if  the  plaintiff  becomes  non-suited  "or  fails  to 
prove  his  right  to  the   possession"  the  defendant   shall  have 
judgment.-'^ 

19  The  writer  asked  the  late  Har-  you  will  find  I  stuck  pretty  closely 

vey  B.  Hurd,  the  author  of  the  Re-  to  them." 

vised    Statutes    of    1874    about    the  20  The   Massachusetts   court   it    is 

source  of  the  Illinois  Forcible  Entry  true  was  aided  in  reaching  its  con- 

and  Detainer  Act  of   1872  and  re-  elusion  by  a  feature  of  the  Massa- 

ceived    this    in    reply:       "While    I  chusetts    statutes    not    embodied    in 

consulted     the     Mass.     Statutes    on  the  Illinois   Act  of   1872;   t.   c,  the 

many  subjects  I  do  not  think  T  did  provision    that   if    it   appeared   that 

in   reference   to   Forcible  Entry   and  title    was    involved    the    suit    might 

Detainer.       I     think    by    consulting  be    summarily    removed    to    the    Su- 

statutes   of    1845   and   amendments,  perior  Court.     But   it  is  observable 

265 


§  259]  FUTURE   INTERESTS  [Ch.  XIII 

Cousideriiig,  then,  the  language  of  the  Illinois  forcible  entry 
and  detainer  act  of  1872  as  contrasted  with  that  of  1827,  and 
the  fact  that  our  act  of  1872  was  modeled  after  the  Massa- 
chusetts act  of  1836,  which  was  thought  by  eminent  counsel 
in  1851  to  furnish  no  remedy  to  one  forcibly  put  out  by  him 
who  had  the  immediate  right  to  possession — an  opinion  since 
declared  to  be  entirely  correct — a  clear  opportunity  was  given 
our  Supreme  Court  to  hold  that,  under  the  Illinois  forcible  entry 
and  detainer  act  of  1872,  one  forcibly  put  out  had  no  action  for 
restitution  against  him  who  had  the  right  to  possession.  There 
was  a  further  reason,  not  present  in  Massachusetts,  for  our  courts 
so  construing  the  act  of  1872.  It  had  become  well  established 
here  that  the  forcible  entry  and  detainer  statutes  had  given  the 
one  forcibly  put  out  by  him  who  had  the  immediate  right  to 
possession,  an  action  of  trespass.-^  As  to  this  result  no  distinc- 
tion was  to  be  drawn  between  the  acts  of  1827  and  1872.^2  By 
this  holding,  therefore,  the  one  forcibly  deprived  of  a  wrongful 
possession  was  given  a  remedy — but  not  the  futile  one  of  putting 
him  back  into  a  wrongful  possession  of  which  he  might  at  once 
be  deprived  by  legal  proceedings.  Without,  however,  in  the 
least  adverting  to  these  considerations,  our  Supreme  Court  con- 
tinued to  hold,  under  the  act  of  1872,  as  it  had  under  the  act  of 
1827,  that  the  immediate  right  to  possession  was  no  defence  in 
a  suit  of  forcible  entry  and  detainer  where  the  plaintiff  had  been 
forcibly  put  out.-^  In  one  case^-i  only  does  the  court  contrast 
the  language  of  the  act  of  1872  with  that  of  1827.  The  conclu- 
sion at  which  it  arrives  after  so  doing  is  thus  stated:  "It  wiU  be 
observed  that  the  two  statutes  are  substantially  alike  and  hence 
any  decision  of  the  court  rendered  under  the  statute  of  1845 
[same  as  act  of  1827]  is  applicable  under  the  present  statute."  ^s 

that    the    opinion    of    the    court    in  22  id. 

Page  V.  Dwight  does  not  at  all  rest  23  Allen  v.  Tobias,  77  111.  169 ; 
upon  this  provision,  but  finds  the  Doty  v.  Burdick,  83  111.  473;  Hub- 
other  clauses  already  referred  to  ner  v.  Feige,  90  111.  208;  Stillman 
■which  were  embodied  in  the  Illinois  v.  Palis,  134  111.  532;  Phelps  v. 
Act  amply  suflBcient  as  a  basis  for  Eandolph,  147  111.  335;  Knight  v. 
its  decision.  Cf.  "Right  of  a  Knight,  3  111.  App.  206;  Pederson 
Landlord  to  Regain  Possession  by  v.  Cline,  27  111.  App.  249. 
Force,"  4  Am.  Law  Rev.  429,  447-  24  phelps  v.  Eandolph,  147  111. 
449.  335,  339. 

21  Post,  §  266.  25  Then  the  court  goes  on  to  cite 

266 


Ch.  XllIJ  CONDITIONAL    ESTATES  [  ^5  260 

§  260.  Where  the  entry  is  peaceable:  If,  liowever,  iht.'  ciitry 
by  one  entitled  to  ixj.s.scssiou  were  peaceable  there  was  not  the 
slightest  ground  for  saying  that  the  person  dispossessed  could 
maintain  a  forcible  entry  and  detainer  suit  to  be  restored  to 
possession.  He  who  entered  had  done  no  act  described  in  sec.  1 
of  the  act  of  1827.^**  He  had  done  nothing  prohibited  by  the 
1st  section  of  the  act  of  1872.-'^  He  had  done  nothing  for  which 
any  action  is  given  b}^  sec.  2  of  the  act  of  1872.  It  seems  clear 
to  the  writer,  therefore,  that  the  Appellate  Court  for  the  3rd 
district  in  City  of  Bloomington  v.  Brophy  -^  was  entirely  sound 
in  holding  the  right  of  possession  of  the  city  to  a  strip  of  land, 
upon  which  it  had  peaceably  entered,  a  complete  defence  to  an 
action  of  forcible  entry  and  detainer  by  the  person  dispossessed. 

It  would  .seem  to  follow  from  this  that  the  defendant  in  a 
forcible  entry  and  detainer  suit  who  has  entered  in  a  peaceable 
manner,  may  always  show  title  in  himself  in  order  to  maintain 
his  right  to  possession.  It  is  inconceivable  that  one  should  be 
told  by  a  court  that  he  had  a  good  defence  in  the  right  to  pos- 
session where  the  entry  was  peaceable,  and  yet  in  the  next  breath 
be  informed  that  he  could  not  show  his  right  to  possession  by 
proving  his  title.  The  Appellate  Court  therefore,  in  City  of 
Bloomington  v.  Brophy '^^  acted  with  commendable  discrimina- 
tion when  it  held  that  the  defendant  in  the  forcible  entry  and 
detainer  suit  who  had  entered  peaceably  might  prove  its  title  in 
fee.30 

the  cases  decided  under  the  Ad  of  state,    that    title    is    never    involved 
1827,    holding    the    immediate    rij^ht  in  a  suit  of  Forcible  Entry  and  De- 
to  possession  no  defense  in  forcible  tainor,  is  unsatisfactory  as  a  prop- 
entry  and   detainer  by  one  forcibly  osition  of  law.     It  is  an  incomplete 
put  out.     (Ante,  ^  2')S.)  statement  of  actual  results.      (City 
•^f"' Ante,  §258.  of   Bloomington   v.   Brophy,   32    111. 
2- Ante,  §259.  App.    400.)      It    is    unfortunate    so 
28  32  111.  App.  400.     The  case  of  far  as  it  is  correct  because  it  does 
Phelps  V.  Raudolph,  147  111.  335  is  not  suggest  any  legal  principle  upon 
not    contra,    for    there,    as    will    be  which  it  may  rest.     The  proper  dis- 
pointed    out    directly    (post,    §261),  tinction    is,    it    is    submitted    tliis: 
the    whole    question    really    turned  When   title   becomes   relevant   under 
upon  whether  the  entry  was  in  fact  the     statute     it     may     be    involved, 
peaceable  or  forcible.  When    it    is    irrelevant    under    the 
^9  32  111.  App,  400.  statute  it  is  not  involved.     Now  in 
30  The    general    statement    often  almost  all  cases  the  question  of  title 
met    with    in   the   decisions    of   this  is  by  the  terms  of  the  statute  en- 

267 


§  261]  FUTURE  INTERESTS  [Ch.  XIII 

§  261.  What  entry  is  peaceable  and  what  forcible :  Since 
the  immediate  right  to  possession  is  a  defence  to  him  who  enters 
peaceably  and  no  defence  to  one  who  enters  forcibly,  the  ques- 
tion becomes  important — when  is  an  entry  peaceable  and  when 
forcible  ? 

This  question  was  fully  dealt  with  and  apparently  settled  for 
the  time  being  by  our  Supreme  Court  in  Fort  Dearborn  Lodge  v. 
Klein. ^'^  There  force  within  the  meaning  of  the  statute  was  held 
to  be  "  actual  force  as  contradistinguished  from  that  force  which 
is  implied  from  an  unlawful  entry  merely,"  and  an  end  was 
made  of  the  idea  that  had  grown  up  around  a  dictum  of  Reeder 
V.  Purdyj^^  that  the  forcible  entry  forbidden  was  any  entry 
against  the  will  of  the  occupant.  Thus  the  law  stands  unless  we 
can  say,  upon  an  examination  of  the  more  recent  case  of  Phelps 
V.  Bandolph,^'^  that  there  has  been  some  return  to  the  dictum  of 
Reeder  v.  Purdy. 

Phelps  V.  Randolph  was  a  peculiar  case.  The  plaintiff  who 
had  been  put  out  by  the  one  having  the  immediate  right  to  pos- 
session, sued  in  forcible  entry  and  detainer  to  be  restored  to  his 
wrongful  possession.  This  he  might  do  if  the  entry  of  the 
rightful  owner  had  been  forcible.^^  The  plaintiff  clearly  had  the 
right  of  it  on  the  facts,  for  the  entry  was  with  actual  physical 
force  and  violence.  On  the  other  hand  the  defendant  would  seem 
to  have  had  the  best  of  it  upon  the  record,  because  the  court 
below  had  instructed  the  jury  that  "the  taking  of  such  property 
by  opening  a  gate  and  removing  cattle  or  other  stock  therefrom, 
against  the  will  of  the  one  occupying  such  property,  is  a  forcible 
entr}^  under  the  law."  This  was  open  to  the  criticism  that  it 
did  not  fairly  tell  the  jury  that  "forcible"  meant  actual  phys- 
ical force  according  to  the  doctrine  of  the  Klein  case,  but  left 
them  to  infer  that  an  entry  merely  against  the  will  of  the  occu- 

tirely   immaterial.      Thus,  when  the  session  beeomes  a  good  defense  and 

entry   is   forcible,   even   by   one   en-  in   showing   the   right   to   possession 

titled  to  possession,  the  right  to  pos-  the     title     may     become     involved, 

session    and    consequently    title    as  (City  of  Bloomington  v.  Brophy,  32 

showing  the   right   to  possession,   is  111.  App.  400.) 

entirely   irrelevant    under   our    deci-  3i  115  111.  177;  post,  §269. 

sions.     (Ante,  §§258,  259.)     On  the  ^^  4I  111.  279;  post,  §267. 

other  hand  when  the  entry  is  peace-  •*•''  147  111.  335. 

able  by  one  who  has  the  immediate  ^■i  Ante,  §§258,  259. 
right  to  possession,  the  right  to  pos- 

268 


Ch.  XIII]  CONDITIONAL   ESTATES  [§262 

pant  was  forcible.  The  judgment  for  the  plaintiff  was,  however, 
sustained  and  the  court  certainly  appears  to  support  the  idea 
that  any  entry  against  the  will  of  the  occupant  is  forcible.  All 
the  authorities  cited  to  sustain  such  a  position  are,  however, 
curiously  vulnerable.  The  court  quotes  from  Atkinson  v.  Les- 
ter -'^  and  Croff  v.  Ballinger,^*^  where  the  person  in  peaceable 
posse.ssion  had  been  dispossessed  by  one  having  no  right  to  pos- 
session.-'" in  such  a  case  the  entry,  no  matter  how  peaceable, 
is  the  foundation  of  an  action  of  forcible  entry  and  detainer 
under  the  very  terms  of  the  statute.  The  court  cites  Smith  v. 
Hoag  ■■'•'*  where  the  entry  was  clearly  with  actual  force.  Finally, 
they  refer  to  that  dictum  of  Keeder  v.  Purdy,-^'-'  which  long  pre- 
vailed to  demoralize  the  law  where  the  one  dispossessed  brought 
trespass,  but  which  was  entirely  disposed  of  in  Fort  Dearhorn 
Lodge  v.  Klein.'*^'  Phelps  v.  Randolph  is,  it  is  believed,  properly 
explained  as  a  case  wliere  the  facts  in  the  record  overbore  the 
fault  in  the  instructions; — where  the  court  could  say  that  upon 
the  undisputed  facts  the  trial  court  should  have  peremptorily 
instructed  that  the  entry  was  forcible,  so  that  the  fault  in  the 
instruction  did  not  do  the  defendant  any  harm.  Viewed  in  this 
way  the  definition  of  a  forcible  entry  contained  in  the  Klein 
case  is  not  in  any  way  modified  or  interfered  witli. 

§  262.  How  far  may  the  one  put  out  sue  in  trespass  q.  c.  f., 
assault  and  battery,  and  d.  b.  a. — Three  possible  views:  To 
counts  in  trespass  for  assault  and  battery  and  de  bonis  aspor- 
tatis  the  substance  of  the  defence  will  be  the  same:  that  the 
defendant  had  the  immediate  right  to  possession  of  the  prem- 
ises and  after  requesting  the  plaintiff  to  leave  he  entered  and 
put  him  and  his  goods  out,  using  no  more  force  than  was  neces- 
sary. ^^  In  the  ease  of  trespass  quare  clausum  f regit,  the  plea 
is  technically  one  of  liherum  tenementnm,  and  consists  merely 
in  the  allegation  that  the  locus  in  quo  was  the  freehold  of  the  de- 
fendant,'*2  it  being  left  to  the  plaintiff  to  set  up  in  his  repli- 

ar.  1  Scam.   (111.)   407.  *^  For   the   form   of   the   plea   see 

30  18  111.  200.  2  Chitty  on  Pleading  (ed.  of  1809), 

••57  Doty    V.    Burdick,    8!!  111.    473,       529;  also  Newton  v.  Harland,  1  M. 

478;  Hammond  1).  Doty,  184  111.  246,       &    G.    644,    1    Si'ott    N.    R.    474;    1 

to   same   effect.  Ames'  Cases  on  Torts,  136. 

38  45  111.  250.  '•2  2   Chitty   on   Pleading    (1st  ed. 

39  Pos/,  §268.  1809),  551-554. 
-•f  Post,  §  269. 

269 


§  262]  FUTURE   INTERESTS  [Ch.  XIII 

cation  any  further  facts  which  show  a  right  to  possession  in  him 
consistent  with  the  defendant's  having  the  freehold.*^  The 
basis,  then,  of  the  plea  of  liherum  tenementum  is  the  immediate 
right  to  possession  of  the  defendant.'** 

Concerning  the  validity  of  these  defences,  there  are  three 
views : 

(1)  It  has  been  held  that  these  defences  are  all  valid,  no  mat- 
ter what  sort  of  an  action  of  trespass  is  brought,  or  how  much 
force  is  used,  provided  only  no  more  than  necessary  is  employed. 
This  rests  upon  the  assumption  that  by  the  common  law  the  de- 
fence was  valid  and  that  no  statute  had  ever  taken  it  away; 
that  the  forcible  entry  and  detainer  statute  only  punished 
forcible  entries  as  crimes — viz.,  as  offences  against  the  public  and 
did  not  alter  the  common  law  as  between  individuals.*^ 

(2)  On  the  other  hand  some  cases  go  to  an  opposite  extreme, 
holding  the  defences  bad  in  all  cases  where  the  entry  is  made 
with  actual  force.*'^  These  seem  at  bottom  to  go  upon  a  judicial 
conception  of  what  sound  policy  demands.  They  are  designed  to 
discourage  violence  and  the  taking  of  the  enforcement  of  law 
into  private  hands.    It  is  made  possible  because  the  common  law 

43  "The  plea  [of  liherum  tenc-  hold  in  the  defendant  with  a  right 
mentum]  has  sometimes  been  eriti-  to  immediate  possession  as  against 
cised  for  being  anomalous  and  il-  the  plaintiff'  (Ryan  v.  Clark,  14  Q. 
logical  in  this,  that  the  defendant,  B.  71).  And  this  we  think  is  the 
though  a  freeholder,  might  never-  legal  effect  of  the  plea."  Mulkey, 
theless  be  guilty  of  a  trespass,— as  C.  J.,  in  Fort  Dearborn  Lodge  v. 
where  a  landlord  wrongfully  enters  Klein,  115  111.  177,  187. 

upon  his  tenant.     But  in  such  case  45  Low  v.  Elwell,  121  Mass.  309; 

that  is  proper  matter  to  be  set  up  1    Ames    Cases    on    Torts,    2nd    ed. 

in    a    replication, — the    very    thing  146, — and   see  cases   there   cited   on 

which  was  done  in  this  case. ' '    Mul-  page  149,  note  9.    In  Low  v.  Elwell, 

key,  C.  J.,  in  Fort  Dearborn  Lodge  the  action  was  trespass  for  assault 

V.  Klein,  115  111.  177  at  p.  187.     For  and  the  defense  was  valid.     A  for- 

the   form    of   the   replication   see   2  tiori,   it   would   have  been   valid   in 

Chitty  on  Pleading    (1st  ed.  1809),  trespass  quare  clausum  f regit. 

648.  46Duston  v.  Cowdry,  23  Vt.  631; 

44  "As  a  plea  of  confession  and  see  cases  cited  1  Ames'  Cases  on 
avoidance  it  [a  plea  of  liherum  Torts  (2nd  ed.),  p.  152,  note  2.  In 
tenementum]  has  been  construed  to  Duston  v.  Cowdry,  supra,  the  de- 
admit  'such  a  possession  in  the  fense  was  denied  in  an  action  of 
plaintiff  as  would  enable  him  to  trespass  q.  c.  f.  and  d.  h.  a.  A  for- 
maintain  the  action  against  a  tiori,  it  would  have  been  denied  iu 
wrongdoer,    and    to    assert    a    free-  trespass  for  assault  and  battery. 

270 


Ch.  XIII]  CONDITIONAL    ESTATES  [§264 

relied  upon  in  tlie  first  class  of  cases  supra  did  not  early  become 
crystallized  in  decisions  to  the  extent  of  the  view  there  an- 
nounced. 

(3)  The  English  courts  have  reached  results  consistent  with 
both  the  above  views.  The  earlier  Enp:lish  cases  settled  it  as 
law  that  in  trespass  q.  c.  f.  the  plea  of  liherum  tenement um  was 
valid  even  where  the  entry  was  forcible,^^  and  such  has  always 
continued  to  be  the  law  in  Enj^land.^**  It  was  not,  however,  until 
the  middle  of  the  I'Jth  century  that  the  question  arose  as  to  the 
validity  of  the  defences  mentioned  in  the  case  of  trespass  for 
assault  and  battery.  In  spite  of  much  opposition  the  newer  public 
policy  prevailed  and  the  defence  was  held  insufficient  in  Newton 
V.  Harland.^^  Such  has  not  only  remained  the  law  in  England, 
but  in  the  more  recent  case  of  Beddall  v.  Maitland,^^  the  defence 
to  a  count  of  trespass  d.  h.  a.  was  denied. 

§  263.  The  Illinois  cases — First  indications :  The  first  tend- 
ency exhibited  in  the  Illinois  cases  was  to  follow  the  result  of 
the  English  cases  that  in  trespass,  q.  c.  f.  the  plea  of  liherum 
tenementum  was  a  good  defence.^^ 

§  264.  Reeder  v.  Purdy  ■*- — Its  real  scope:  In  this  case  the 
plaintiff  joined  counts  in  trespass  for  assault  and  battery  upon 
his  wife,  d.  h.  a.  and  q.  c.  f.  The  plaintiff  and  his  wife  sued 
also  declaring  upon  two  counts  in  assault  upon  the  wife.  In 
both  suits  the  general'  issue  was  filed  and  by  agreement  all  de- 
fences might  be  made  under  it.  The  plaintiff  had  entered  under 
a  parol  contract  for  the  purchase  of  the  land  and  the  defendant 

♦"4  Am.  Law  Rev.  431-437.  defendant    must    be    made    "in    a 

48  Beddall  i'.  Maitland  (1881),  17  peaceable  manner."  See  post, 
Ch.    Div.    174;    1    Ames'    Cases    on       §§264,  265  et  seq. 

Torts    (2nd    ed.),    143;    Beattie    v.  At    the    time   of    these    two   cases 

Mair   (1882),  L.  R.  10  Irish  208;   1  the    Forcible    Entry    and    Detainer 

Ames'    Cases    on    Torts    (2ud    ed.),  statute   of   1827    (ante,    §258)    was 

151.  in  force. 

49  1  M.  and  G.  644;  1  Ames'  Cases  5241  m.  279.  Note  that  this  case 
on  Torts  (2nd  ed.),  136.  is     cited     almost     indifferently     as 

50  17  Ch.  Div.  174;  1  Ames'  Cases  Reader  v.  Purdy  and  as  Reeder  v. 
on   Torts,   143.  Purdy.      The    reason    seems    to    be 

51  Hoots  r.  Graham,  23  111.  81.    In  tliat  the  former  is  the  title  in  Den- 
Dean  V.  Comstock,  32  111.   173,  179,  slew's    edition    of    41    111.,   and    the 
the    Court    seems    to    fully    sustain  latter  is  the  spelling  used  in  Free- 
this     plea,     adding,     however,     the  man 's  edition  of  the  same  report, 
qualification   that  the  entry  by  the 

271 


§  264]  FUTURE   INTERESTS  [Ch.  XIII 

claimed  to  be  the  OAvner  with  an  immediate  right  to  possession. 
The  court  instructed  "'^  that  "The  fact  that  the  defendant  Reeder 
was  the  owner,  and  entitled  to  the  possession  of  the  premises  oc- 
cupied by  the  plaintiff  is  no  justification  for  the  assault  and  bat- 
tery upon  tlie  plaintiff's  wife,  if  any  such  is  proven,  and  no  justi- 
fication of  his  attempts  to  take  possession  of  the  premises  occu- 
pied by  the  plaintiff'  by  force,  and  no  justification  for  the  removal 
of  the  plaintiff's  property  therefrom  by  force,  if  any  such  force 
is  proven ;  provided  that  the  plaintiff'  and  his  family  were  in  the 
quiet  possession  of  the  said  premises  at  the  time  of  such  assault 
and  force."  There  was  a  verdict  and  judgment  for  the  plaintiffs, 
and  upon  appeal  this  was  affirmed.  The  propriety  of  the  above 
(juoted  instruction  was  directly  called  in  question,  fully  consid- 
ered by  the  supreme  court  and  approved.  Jt  might  have  been 
jbjected  that  this  instruction  did  not  make  clear  that  it  was  to 
be  applied  only  in  case  the  entry  was  made  with  actual  physical 
force.  But  this  might  well  have  been  met  by  saying  that  it  was 
not  material  error  because  the  trial  court  was  warranted  from 
the  evidence  in  assuming  that  actual  force  had  been  used.^'* 
Indeed  the  supreme  court  seems  to  make  this  assumption  as  a 
matter  of  course.  The  approval  of  this  instruction  then,  taken 
together  with  the  fact  that  the  jury  could  not  have  found  other- 
wise than  that  actual  force  had  been  used,  establishes  this  rule 

53  These   instructions   are   set   out  sailants   with   hot  water,  a  stick   of 

only  in  41  111.  279,  280   (Denslow's  wood    and   a   bayonet    belonging    to 

Reports).  her   husband,    who   had   been   a   sol- 

5*  The  following  is  a  description  dier  in  the  army,  and,  insomuch 
of  the  means  employed  to  get  that  one  of  the  assailants  was 
Purdy  out,  given  in  Denslow's  re-  obliged  to  hold  her  by  the  wrists, 
port  of  the  case:  "Eeader,  Baker  to  enable  the  other  two  to  get  out 
and  Barker,  in  the  absence  of  the  furniture.  Finally,  after  all 
Purdy  from  home,  got  admission  the  furniture  had  been  got  out  of 
into  the  house,  and  then  proceeded  the  house,  except  that  in  her  bed 
to  put  Mrs.  Purdy  and  the  furni-  room,  she  succeeded  in  nailing  a 
ture  out  of  the  house  by  force.  board  across  the  door  and  barring 
Mrs.  Purdy,  who  is  described  as  a  her  assailants  out.  By  this  time 
weak  little  woman,  weighing  nine-  the  city  marshal  and  others  had  ar- 
ty-six pounds,  fought  for  her  pos-  rived,  and  the  attempt  to  dispossess 
session  with  great  energy.  She  her,  which  had  occupied  from  nine 
locked  one  of  the  doors  and  gave  to  twelve  o'clock  in  the  morning, 
the  key  to  her  daughter,  from  whom  was  abandoned." 
it  was  taken,  then  went  at  the  as- 

272 


Ch.  XIII]  CONDITIONAL    ESTATES  [§265 

only:  in  trespass  qunre  clausum  frffjit,  assault  and  battery,  or 
de  bonis  asportatis  the  right  of  possession  is  no  justification 
whore  the  entry  was  forcible.''"' 

S  265.  Subsequent  cases — Fort  Dearborn  Lodge  v.  Klein:  ■•''■ 
The  scope  of  Heeder  v.  Purdij  as  above  indicated  has  been  re- 
peatedly affirmed  and  followed.  It  mattered  not  whether  the 
suit  was  trespass  with  the  three  counts  ^"  as  in  Heeder  v.  Purdy, 
or  with  a  count  de  bonis  asportatis  joined  with  one  or  the  other 
of  the  two  out  of  the  three  counts/'^  or  in  trespass  quare  clausum 
frefjit  alone.''-'  In  every  instance  the  result  was  the  same.  Any 
justification  based  upon  the  immediate  right  to  possession  was 
out  of  the  question  where  the  entry  was  with  actual  force.  Thus, 
Reedcr  v.  Purdjj  eame  very  properly  to  stand  for  the  proposi- 
tion that  the  common  law  right  of  a  person  entitled  to  possession 
to  forcibly  enter  upon  the  land,  using  as  much  force  as  might 
be  necessary,  had  been  done  away  with  in  this  state."" 

Fort  Dearborn  Lodge  v.  Klein  and  the  cases  following  it  «^ 
have  only  made  this  more  clear.  In  none  of  them  is  it  suggested 
that  any  entry  by  actual  force  can  be  justiHed.  In  the  Klein 
case  the  court  especially  distinguishes  that  case  from  Beeder 
V.  Purdy  and  Page  v.  DcPuy  in  the  foUoAving  manner:  "In 
the  present  case  the  plea  expressly  avers  that  the  entry  was 
peaceable,  and  moreover  the  proofs  show  that  such  was  the 
fact.  There  was  such  force  in  the  Page  and  Reeder  cases  as  to 
clearly  bring  them  within  the  forcible  entry  and  detainer  laws, 
even  as  construed  in  England." 

The  Klein  case  and  more  recently  Pgan  v.  Siui  Sing^>-  have 
justified  so  far  as  the  action  of  trespass  quare  clausum  fregit  is 

35  Observe,  in  passing,  that  if  tbc  b.    a.)  ;    Comstock    v.    Brosseau,    65 

defendant  has  himself  been  wrong-  111.  39  (q.  c.  f.  and  d.  h.  a.). 

fully   dispossessed   by   the   plaintiff,  ^^  Page  v.  De  Puy,  40  111.  506,  de- 

and   the  defendant   has  forcibly  re-  cided  at  the  same  term  (Apl.  1866) 

taken    possession,    the    defendant's  as  Keeder  v.  Purdy,  and  following 

right    to   possession    seems   to   be   a  rather    than     preceding    that     case, 

valid  defense:    Chapman  i;.  Cawrey,  (See    40    111.    509-510);     Illinois    & 

50   111.  512;   Illinois  &  St.  L.  R.  R.  St.  L.  R.  R.  Co.  v.  Cobb,  68  111.  5S. 

Co.  V.  Cobb,  82  111.  183,  94  111.  55.  «<>  Dearlove  v.  Herrington,  70   111. 

50  115  111.  177.  251,  253. 

57Haskins  i'.  Haskins,  67  111.  446.  "i  Lee  v.  Mound   Station,   118  111. 

58  Wilder    r.    House,    48    111.    279  304;    Ryan    v.    Sun    Sing,    164    111. 

(assault   and   d.    b.   «.)  ;    Farwoll    r.  259;  Rose  v.  Ruyle,  46  111.  App.  17. 

Warren.  51   111.  467   {(].  <:  f.  and  d.  «2  164  111.   259. 
Kales  Fut.  Int.— 18                          273 


I  266]  FUTURE  INTERESTS  [Ch.  XIII 

concerned.*'^  the  Avriter's  view  of  the  true  scope  of  Reeder  v. 
Pvrdij.  They  hold  that  if  the  entry  is  peaceable  the  immediate 
right  to  possession  is  a  complete  defence.^*  The  plea  of  liherum 
tenement  urn  is,  however,  bad  on  demurrer  unless  it  contain  an 
addition  not  found  in  Chitty,— that  the  defendant  entered  "not 
with  force,  but  peaceably. "  ^^ 

$  266.  The  ground  of  the  rule  laid  down  in  Reeder  v.  Purdy : 
"The  statute  of  forcible  entry  and  detainer  [of  1827]  "  ^e  said 
Mr.  Justice  LaAvrence  in  that  case  "not  in  terms,  but  by  neces- 
sary construction  forbids  a  forcible  entry,  even  by  the  owner, 
upon  the  actual  possession  of  another.*'"  Such  entry  is,  there- 
fore, unlawful.  If  unlawful  it  is  a  trespass,  and  an  action  for 
the  trespass  must  necessarily  lie."  The  first  section  of  the 
forcible  entry  and  detainer  statute  of  1872,68  however,  left 
nothing  to  implication,  but,  in  terms  provided,  "that  no  person 
shall  make  an  entry  into  lands  or  tenements  except  in  cases 
where  entry  is  allowed  by  law,  and  in  such  cases  he  shall  not 
enter  with  force  but  in  a  peaceable  manner." 

The  English  statutes  against  forcible  entry  and  detainer  were 
criminal  acts.  They  punished  and  prohibited  offences  against 
the  public.  It  early  became  the  settled  law  in  England  that 
these  statutes,  though  that  of  5  Rich.  II,  ch.  7,  contained  a 
prohibition  in  the  same  language  as  sec.  1  of  our  act  of  1872, 
did  not  do  away  with  the  defence  of  lihenim  tenementum  in 
an  action  of  trespass  q.  c.  /.  even  when  the  defendant  had 
entered  with  such  force  as  the  statute  made  a  criminal  offense.«» 
This  was  sustained  on  the  ground  that  the  creation  by  statute 

63  What  the  holding  will  be  where  Sing,  164  111.  259.  In  Rose  v.  Euyle 
the  entry  is  peaceable  but  the  ac-  46  111.  App.  17  (3d  dist.)  the 
tion  is  for  assault  and  battery  or  Court,  by  Pleasants,  J.,  follows  the 
de  bonis  asportatis  still  remains  an  Reeder  and  Klein  cases  with  great 
open  question  in  our  Supreme  Court  discrimination,  laying  it  down  dis- 
(post    §270).  tinctly  that  a  good  plea  of  liherum 

64  See  also  Dean  v.  Comstock,  32  tenementum  must  contain  the  ad- 
Ill.  173,  179  (semhle)  ;  Brown  v.  ditional  allegation  that  the  entry 
Smith,  83  111.  291    (semhle)  ;   Piper  was  peaceable. 

V.    Connelly,    108    111.    646;    Lee   v.  ^^^  Ante,  §258. 

Mound  Station,   118  111.   304;    Rose  07  See  also   Ambrose   v.   Root,   11 

V.  Ruyle,  46  111.  App.  17.  111.  497,  500,  accord. 

65  Such  was  the  form  of  the  plea  68  Ante,  §  259. 
in  Fort  Dearborn  Lodge  v.  Klein,  "^  Ante,  §  262. 
115   111.  177;    also  in  Ryan   v.  Sun 

274 


ClJ.XlllJ  CONDITIONAL    ESTATES  [§267 

of  a  public  ott'onse  punished  hy  the  state  did  not  alter  the  rights 
of  individuals  toward  each  other.  Now,  the  Illinois  acts,  though 
modeled  to  some  extent  upon  the  Phiglish  acts,  are  not  criminal 
statutes.  They  neither  define,  proliibit  or  punish  an  act  against 
the  public  as  did  the  I"]nglish  acts.  They  contain  in  addition 
to  the  civil  remedy  for  restitution,  simply  a  general  prohibi- 
tion and,  if  that  is  to  be  given  full  effect  as  a  prohibition,  it 
must  operate  to  prevent  any  justification  for  entries  by  the  one 
entitled  to  possession  where  such  entries  are  by  force. 

The  English  cases,  having  started  in  to  say  that  the  criminal 
forcible  entry  and  detainer  statutes  had  nothing  to  do  with  the 
rights  of  individuals  toward  each  other,  should  have  continued 
so  to  hold,  and  to  regard  the  right  of  entry  using  no  more  force 
than  is  necessary  as  a  justification,  not  only  in  trespass  q.  c.  f. 
but  in  assault  and  battery  and  d.  b.  a.  as  at  common  law."<^  The 
inconsistency  of  the  English  cases  is  that  they  did  not  do  this, 
but,  in  Neivton  v.  Harland~^  held  that,  in  trespass  for  assault 
and  battery  the  defence  of  right  to  possession  was  not  good. 
Our  Supreme  Court,  with  more  consistency,  it  is  believed,  has 
continued  down  to  the  present  time,  to  consider  the  forcible 
entry  and  detainer  statute  of  1827  and  1872  as  containing  a 
sweeping  prohibition  on  all  forcible  entries,  even  when  made 
by  the  person  having  the  i-ight  to  possession.  It  has  constantly 
held,  therefore,  that  such  an  entry  constituted  an  unjustifiable 
trespass  q.  c.  f.  and  that  there  was  no  defence  to  counts  for 
assault  and  battery  and  trespass  d.  h.  a. 

§  267.  Distinction  between  forcible  and  peaceable  entry: 
Tiie  actual  decisions  of  our  Supreme  Court  and  the  grounds 
upon  which  they  rest  clearly  nuike  the  distinction  between  a 
forcible  entry  and  a  peaceable  entry  all  important.  When,  then, 
is  an  entry  forcible  and  when  peaceable?  The  answer  to  this 
question  depends  wholly  upon  the  construction  to  be  given  the 
terms  "forcible,"  and  ''peaceable"  in  our  forcible  entry  and 
detainer  statutes.  It  is  believed  that  these  were  so  far  modeled 
after  tiie  English  acts  that  our  construction  of  these  terms 
should  follow  that  given  to  the  same  words  in  the  English  stat- 
iites.''2    This  is  certainly  the  view  taken  by  our  Supreme  Court 

TO  This   is   the   position  which   the  7i  l  M.  &  G.,  644,  1   Scott  N.  R. 

Massachusetts      Court      has     taken.       474;  1  Ames  Case  on  Torts,  136. 
Ante,  §262.  --^Post,  §  45M,  note  5. 

275 


§  268]  FUTURE   INTERESTS*  [Ch.  XIII 

in  Fort  Dearborn  Lodge  v.  KlemJ'^  "The  word  forcible,  as 
used  in  the  statute  [s]  "  says  Mr.  Justice  Mulkey  in  his  ad- 
mirable opinion  in  that  case,  referring  to  the  statute  of  Rich.  2 
and  some  other  English  forcible  entry  and  detainer  acts,  "was 
held  to  mean  actual  force  as  contradistinguished  from  that  force 
which  is  implied  from  an  unlawful  entry  merely.  By  actual 
force  Avas  meant  such  as  breaking  open  doors,  or  other  like 
violent  acts.  So  where  an  entry  was  effected  by  means  of 
threats  or  intimidation  of  any  kind,  such  as  being  attended  by 
an  unusual  number  of  persons  or  by  making  a  display  of  dan- 
gerous weapons,  it  would  be  deemed  a  forcible  entry  within 
the  meaning  of  these  statutes." '^^ 

§  268.  The  vice  of  Reeder  v.  Purdy:  ^^  The  vice,  if  any,  of 
Feeder  v.  Piirdy  was  the  impression  which  it  left  that  a  forcible 
entry,  such  as  made  a  right  to  possession  no  defence  in  trespass, 
meant  any  entry  against  the  will  of  the  person  in  possession. 
This  would  practically  make  every  entry  forcible  and  deny  any 
justification  for  the  entry  of  one  entitled  to  the  possession. 

Some  color  for  this  view  was  to  be  found  in  Reeder  v.  Purdy. 
Mr.  Justice  Lawrence,  in  that  case,  after  quoting  from  Black- 
stone  to  the  effect  that  "an  eighth  offence  against  the  public 
peace  is  that  of  forcible  enti-y  and  detainer,  which  is  committed 
by  violently  taking  or  keeping  possession  of  lands,  and  tene- 
ments with  menaces,  force  and  arms,  and  without  the  authority 
of  law,  *  *  *"  goes  on  to  say,  "In  this  state  it  has  been  con- 
stantly held  that  any  entry  is  forcible,  within  the  meaning  of 
this  law,  that  is  made  against  the  will  of  the  occupant."  In 
another  portion  of  his  opinion  after  admitting  that  one  entitled 
to  possesion  may  enter  ' '  if  he  can  do  so  without  a  forcible  dis- 
turbance of  the  possession  of  another,"  continues,  "but  the 
peace  and  good  order  of  society  require  that  he  shall  not  be 
permitted  to  enter  against  the  will  of  the  occupant." 

73  115  111.  177,  185-187;  ante,  111.  53;  Westcott  v.  Arbuekle,  12 
§  261.  Ill-  App.  577. 

74  Observe  the  following  cases  In  the  following  cases  the  entry 
where  the  entry  was  forcible  under  was  peaceable:  Fort  Dearborn 
this  view:  Eeeder  v.  Purdy,  41  111.  Lodge  v.  Klein,  115  111.  177;  Ryan 
279;  Wilder  v.  House,  48  111.  279;  v.  Sun  Sing,  164  111.  259;  Com- 
Farwell  v.  Warren,  51  111.  467 ;  Has-  stock  v.  Brosseau,   65   111.   39. 

kins   V.    Haskins,   67    111.   446;    Illi-  "41  111.  279;   ante,  §264. 

nois  &  St.   L.  R.  R.  Co.  v.  Col)b,  68 

276 


Ch.  XIII]  CONDITIONAL   ESTATES  [§268 

Observe  that  since  the  entry  in  Reeder  v.  Purdy  was  indis- 
putably with  actual  force  and  the  instructions  were  sustained 
upon  that  assumption,^"  these  remarks  of  Mr.  Justice  Lawrence 
were  entirely  unnecessary  to  the  decision.  They  might,  then, 
well  have  been  passed  by  as  carrying  farther  than  was  ijitended. 
Instead,  they  were  evidently  seized  upon  and  exploited  for  the 
purpose  of  making  all  entries  illegal,  for  an  entry,  however 
peaceable,  might  always  be  against  the  will  of  the  occui)ant. 
So  long  as  Reeder  v.  Pnrdy  was  cited  as  the  leading  case  upon 
the  subject,  it  was  not  uncommon  to  find  judges  at  nisi  prius  "^"^ 
giving  instructio'ns  that  not  even  one  who  had  an  immediate 
right  to  possession  could  make  an  entry  without  legal  process 
ag^ainst  the  will  of  the  one  in  possession.  Even  the  supreme 
court  "'^  itself  appears  to  have  approached  very  close  to  such  a 
rule. 

Mr.  Justice  Lawrence  did  not  cite  any  eases  for  his  proposi- 
tion that  an  entry  by  one  entitled  to  possession  is  forcible  within 
the  meaning  of  the  forcible  entry  and  detainer  statute  if  it  be 
made  "against  the  will  of  the  occupant."  He  did,  however, 
speak  of  its  having  been  constantly  so  held  in  this  state.  The 
learned  judge,  doubtless  had  in  mind  two  weU  known  previous 
adjudications  ^^  that  where  one,  who  has  no  right  to  do  so,  enters 
upon  the  one  in  peaceable  possession,  the  one  so  entered  upon  can 
bring  an  action  of  forcible  entry  and  detainer  under  the  stat- 

■«  Ante,   §  264.  79  Atkinson    v.    Lester,     1     Scam. 

7- Brooke  V.  O 'Boyle,  27  111.  App.  (111.)    407;    Croff    v.    BalUnger,    18 

384;   Mueller  v.  Kuhn,  46  111.  App,  111.  200. 

496;  Fort  Dearborn  Lodge  v.  Klein,  Many  eases  decided  since  Reeder 

115    111.    177    (observe    attitude    of  v.  Purdy  follow  the  doctrine  of  these 

the  trial  court).  two  cases:     Smith  v.   Hoag,   45   111. 

TSDearlove  v.  Herrington,  70   111.  250;    Doty  v.   Burdick,  83  111.  473; 

251,  253;  Comstock  v.  Brosseau,  65  Phelps    v.    Randolph,    147    111.    335; 

111.    39;    "Westcott   v.    Arbuckle,    12  Hammond    v.    Doty,    184    111.    246; 

111.  App.  577,  580.     In  Dearlove  v.  Pratt   v.    Stone,    10    111.    App.    633; 

Herrington,  supra,   the    Court  cited  Pederson  v.  Cline,  27  111.  App.  249; 

Reeder    v.    Purdy,    as    holding    that  Parrott    v.    Hodgson,    46    111.    App. 

' '  if  the  owner  in  fee  be  wrongfully  230 ;  Coverdale  r.  Curry,  48  111.  App. 

kept    out    of    possession,    he    is    not  213;     Roberts    v.    McEwen,    81    111. 

permitted  to  enter  against  the  will  App.  413. 
of  the  occupant,  except  for  the  pur-  ■* 

pose  of  demanding  rent,  or  to  make 
necessary  repairs. ' ' 

277 


§  269]  FUTURE   INTERESTS  [Oh.  XIII 

ute.  lu  these  cases  it  was  urged  that  the  plaiutift'  could  not  sue 
because  the  entry  was  not  forcible.  The  obvious  reply  to  this 
was  that  by  the  statute,  under  which  those  cases  were  decided,^^ 
an  action  for  possession  was  given  if  the  defendant  made  "any 
entry  into  any  lands,  tenements  or  other  possessions,  except  in 
cases  where  entry  is  given  by  law,  or  shall  make  any  such  entry 
by  force.  *  *  *  "  If  the  entry  were  wrongful  it  did  not  have 
to  be  with  actual  force  to  enable  the  one  dispossessed  to  bring  his 
action.  In  Atkinson  v.  Lester  ^i  this  was  stated  pretty  directly. 
In  Crojf  V.  Bollinger  ^-  however,  the  court  spoke  to  the  point 
more  at  length,  using  expressions  more  picturesque  than  accu- 
rate. It  was  said  that  "If  one  enters  into  the  possession  of  an- 
other against  the  will  of  him  whose  possession  is  invaded,  how- 
ever quietly  he  may  do  so,  the  entry  is  forcible  in  legal  con- 
templation. The  word  force  in  our  statute,  means  no  more  than 
the  term  vi  et  armis  does  at  common  law,  that  is,  with  either 
actual  or  implied  force."  It  is  submitted  that  these  remarks 
properly  had  reference  only  to  the  ease  where  the  plaintiff,  in 
the  action  of  forcible  entry  and  detainer,  had  been  put  out  by 
one  who  had  no  right  to  the  possession.  It  is  believed  that  the 
vice  of  Reeder  v.  Purdy  consisted  in  suggesting  by  way  of  ohiter 
dictum  that  the  same  language  applied  where  the  plaintiff  in 
trespass  had  been  put  out  by  one  having  the  immediate  right  to 
possession. 

i^  269.  The  virtue  of  Fort  Dearborn  Lodge  v.  Klein:  The 
real  virtue  of  Fort  Dearhorn  Lodge  v.  Klein  was  that  it  put  an 
end  to  the  idea  which  apparently  began  with  Reeder  v.  Purdy 
that  the  forcible  entry  forbidden  to  one  entitled  to  the  posses- 
sion was  any  entry  which  was  against  the  will  of  the  occupant. 
]\Ir.  Justice  ]\Iulkey,  in  giving  the  opinion  of  the  court  in  that 
case,  said:  ^"^  "With  respect  to  the  prohibitory  feature  contained 
in  the  first  section  it  is,  in  legal  effect,  the  same  as  that  contained 
in  5  R.  2  chap.  8  above  cited.  A  person  not  having  a  right  to 
enter  is  forbidden  to  do  so.  One  having  such  right  may  enter 
provided  he  do  so  without  force,  and  in  a  peaceable  manner. 

80  In     both     oases     it     was     the  si  1  Scam.   (111.)   407. 

Forcible  Entry  and  Detainer  Act  of  82  18  111.  200. 

1827:  K.  S.  1827,  p.  228;  K.  S.  1833,  83  n.j    m.   177,   191. 

p.   311;    E.   S.   1839,   p.   313;    R.  S. 
1845,  p.   256. 

278 


Ch.  XIII]  CONDITIONAL   ESTATES  [§271 

The  word  'force'  as  here  used,  means  actual  force,  as  contra- 
distinguished from  implied  force.  Any  entry  requires  force,  in 
the  literal  sense  of  the  term,  but  that,  of  course  could  not  have 
been  meant,  for  it  would  involve  an  absurdity.  Nor  does  it 
mean  that  force  which  the  law  implies  where  a  peaceable  entry  is 
made  by  one  having  no  right  to  enter,  for  the  act  absolutely 
prohibits  a  person  of  that  kind  from  making  an  entry  at  all. 
The  conclusion,  therefore,  is  irresistible  that  the  force  which 
the  statute  inhibits  is  actual  force." 

§270.  Some  further  questions:  It  would  seem  that  acts 
which  would  constitute  a  prima  facie  case  of  trespass  to  chattels 
may  be  perfectly  consistent  with  a  peaceable  entry.  The  right  to 
possession  ought  therefore,  in  such  a  case  to  be  a  good  defence. 
In  the  same  way  acts  which  would  constitute  a  prima  facie  case 
of  assault  and  battery  might,  if  the  damages  were  merely  nomi- 
nal, be  perfectly  consistent  with  a  peaceable  entry.  In  such 
ease,  also,  the  right  to  possession  should  be  a  valid  defence. 

A  more  difficult  question  is  the  determination  of  w^ien  a 
peaceable  entry  becomes  complete,  so  that  any  further  acts  to- 
ward the  person  and  chattels  of  the  former  occupant  may  be 
justified  as  the  legitimate  defence  of  a  lawful  possession,  rather 
than  acts  done  in  the  course  of  gaining  possession  in  an  unlaw- 
ful manner.  In  Page  v.  De  Puy  ^^  Mr.  Chief  Justice  Walker 
said:  the  one  entitled  to  possession  has  "no  right  to  make  a 
forcible  entry,  or,  having  lawfully  entered,  to  inflict  injury 
upon  the  person  or  property  of  the  occupant."  This  seems  to 
point  to  the  rule  which  the  English  cases  have  adopted  ^^  that 
"if  an  entry  be  made  peaceably,  and  if,  after  entry  made,  and 
before  actual  and  complete  possession  has  been  obtained,  violence 
be  used  towards  the  person  who  is  in  possession,  that  is  criminal 
within  the  statute  of  Richard  II." 

§  271.  View  of  the  appellate  court  in  the  first  district — Be- 
fore the  Klein  case:  ^^  The  first  case  ^"^  decided  by  the  ap- 
pellate court  of  the  first  district  involving  the  validity  of  the 
defence  of  immediate  right  to  possession  in  an  action  of  tres- 
pass came  up  in  1883,  two  years  before  the  Klein  ease.  It  seems, 
however,  to  have  followed  the  true  rule  as  announced  bj'  the 

M40  111.   506,  510.  seil5  111.  177;   ante,  §S  265,  269. 

83  Edwick  r.  Ilawkos,  18  Ch.  Div.  st  Westeott    r.    Arl.m'kle,    12    111. 

199,   210-212.  App.  577. 

279 


§272]  FUTURE   INTERESTS  [Ch.  XIII* 

Supreme  Court  in  the  Klein  case, — that,  in  trespass,  with  counts 
for  assault  and  battery,  de  bonis  asportatis,  and  quare  clausum 
fregif,  where  the  entry  was  with  actual  force,  the  right  of  pos- 
session by  the  defendant  was  no  defence. ^^ 

§  272.  Since  the  Klein  case  ^^ — In  trespass  q.  c.  f . — Judge 
Gary's  view:  Since  the  Klein  case  the  appellate  court  of  the 
first  district  seems  to  have  gone  back  to  the  settled  rule  of  the 
English  cases,^" — that  in  trespass  quare  clausum  fregit,  even 
where  the  entry  of  tlie  defendant  has  been  made  with  actual 
force,  the  plea  of  liherum  teneme^itum  is  a  complete  defence.^^ 

In  five  92  of  the  nine  cases  ^^  containing  actual  decisions  or 
dicta  to  this  effect  the  opinion  of  the  court  was  given  by  Judge 
Gary.  It  will  be  convenient  to  examine  these  cases  together 
since  the  repetition  of  his  views  on  several  different  occasions 
upon  the  same  subject  will  go  far  toward  precluding  error  as 
to  what  he  meant.  In  three  ^^  of  the  five  cases  where  Judge  Gary 
gave  the  opinion  of  the  court  the  form  of  action  seems  to  have 
been  trespass  quare  clausum  fregit  alone.^^  The  trial  judge 
seems  fairly  to  have  instructed  the  jury  that  even  though  the 
plaintiff  might  have  wrongfully  withheld  the  possession  of  land 
from  the  defendant,  the  latter  would  not  be  justified  in  entering 
and  taking  possession  with  actual  force.^^     In  all  of  these  cases 

^»Ante,  §§264-266.  19    (Waterman,   J.);    Mead   v.   Pol- 

89  115  111.  177;  ante,  §§265,  269.  lock,   99   111.  App.   151    (Waterman, 

'M  Ante,  §262.  J.);   Mueller  v.  Kuhn,  46  111.  App. 

91  The   only    qualification   to   this,  496  (Shepard,  J.). 

suggested    merely    and    never    acted  94  Brooke  v.  O  'Boyle,  27  111.  App. 

upon,    is    that    there    must    be    no  384;  Harding  v.  Sandy,  43  111.  App. 

breach   of   the   peace  accompanying  442;  Ostatag  v.  Taylor,  44  111.  App. 

the    entry:    Brooke   v.   O 'Boyle,    27  469. 

111.  App.  384,  386.  95  in    Brooke    v.    O  'Boyle,    supra, 

A   breach   of   the   peace  obviously  the    case    came    up    from    a    justice 

includes  more  than  actual  force.  of  the  peace,  so  there  were  no  written 

9-  Brooke  v.  O  'Boyle,  27  111.  App.  pleadings,  but  from  the  evidence  tres- 

384;  Harding  v.  Sandy,  43  111.  App.  pass  q.  c.  f.  was  all  that  could  have 

442;    Frazier    v.    Caruthers,    44   111.  been  complained  of. 

App.  61;   Ostatag  v.  Taylor,  44  111.  96  in   Brooke   v.    O 'Boyle,   27   111. 

App.  469;  White  v.  Naerup,  57  111.  App.     384,     the     Court    instructed: 

App.  114.  "Although  possession   of  land  may 

93  The  cases,  nupra,  note  92,  and  be     acquired     wrongfully     by     the 

also   Chicago   &  W.   I.   R.   R.   Co  v.  plaintiff   this   will   not   justify   even 

Slee,  33  111.  App.  416  (Moran,  J.);  the   owner   of   property   in   entering 

Eichengreen  v.  Appel,  44  111.   App.  and      taking      possession      forcibly 

280 


Ch.  XIII]  CONDITIONAL   ESTATES  [§272 

such  an  instruction  was  lield  improper.  In  White  v.  Naerup  ^"^ 
the  action  was  trespass  quare  clausum  f regit.  The  appellate 
court  held  that  an  instruction  should  have  been  given  which  in 
substance  declared  that  if  the  plaintiff  (the  tenant)  did  acts 
which  amounted  to  a  breach  of  a  covenant  of  the  lease  "then 
the  defendant  [the  landlord]  had  the  right  to  enter  said  store 
and  take  possession  thereof."  It  is  noticeable  here  that  there  is 
no  qualification  that  the  defendant  must  enter  peaceably  and 
without  force. 

In  all  the  cases  above  referred  to  the  temper  of  the  court 
quite  manifestly  leans  to  the  view  that  one  having  a  right  to 
possession  may  enter  even  with  actual  force,  provided  there 
be  no  breach  of  the  peace.  In  Brooke  v.  0 'Boyle  ^^  Judge  Gary 
says :  ' '  The  heresy  introduced  into  the  law  of  this  state  in  1886  '-^^ 
based  upon  Dustan  v.  Cowdry,  23  Vt.  635,  has  after  much  prun- 
ing been  got  rid  of  in  Fort  Dearhorn  Lodge  v.  Klein,  115  111.  177. 
The  owner  may  take  from  a  wrongful  holder  his  own  if  he  can 
do  so  without  a  breach  of  the  peace."  In  Harding  v.  Sandy  ^ 
the  same  learned  judge  said:  "The  profession  is  slow  to  unlearn 
what  in  Brooke  v.  0 'Boyle,  27  111.  App.  384,  we  called  'the 
heresy  introduced  into  the  law  of  the  state  in  1866.'  The  case 
there  cited,  Fort  Dearhorn  Lodge  v.  Klein,  115  111.  177,  holds  that 

against    the   will    of    the    jjerson    in  though   he   is  entitled  to   possession 

possession. ' '  of  certain  premises,  to  take  the  law 

In  Harding  v.  Sandy,  43  111.  App.  into  his  own  hands  and  employ  force 

442,   the    Court   instructed :     ' '  That  and  use  violence   to   regain   posses- 

a    person    in    the    actual    peaceable  sion    even    though    such    possession 

possession  of  premises,  is  presumed  is    wrongfully    withheld.      The    law 

to   be   there   rightfully  and   no   one,  has  provided  the  action  of   forcible 

not  even  the  owner  of  the  property,  entry   and    detainer   and   the   action 

has  a  right  to  go  upon  the  premises  of   ejectment    for   this   purpose   and 

and  forcibly  eject  the  person  so   in  no  one  has  the  right  to  forcibly  eject 

possession    of    the   premises   or    any  another  in  the  peaceable  possession 

part  of  them,  or  remove  his  prop-  of  premises  without  legal  process, 
erty  therefrom  against  his  will,  un-  «7  57  111.  App.  114. 

less  the  jiorson  so  entering  has  some  '■•**  27  111.  App.  384,  386. 

legal  process  from  a  court   of  com-  ■'■'  This    is    obviously    a    misprint 

petent  jurisdiction,  authorizing  him  for   186(5,  the  year  Reeder  v.  Purdy 

to  do   so,  or  consent  of  the  one  in  was  decided.    The  Court  itself  makes 

possession. ' '  the  correction  in  Harding  v.  Sandy, 

In  Ostatag  v.  Taylor,  44  HI.  App.  43  111.  App.  442. 
469,    the    Court    instructed:      "The  1  43  111.  App.  442. 

law    does    not    prevent    a    man,    al- 

281 


§  273]  FUTURE   INTERESTS  [Ch.  XllI 

the  owner  may  take  from  a  wrongful  holder  his  own  if  he  can 
do  so  without  a  breach  of  the  peace.  *  *  *  The  contrary- 
doctrine  for  some  time  held  in  this  state  was  first  adopted  by 
the  supreme  court  in  lieeder  v.  Purdij,  41  111.  279  *  *  *."  ^ 
In  Frazicr  v.  Caruthers,^  Judge  Gary  says:  "Whenever  there  is 
an  abuse  of  the  right  of  entry  by  excessive  force  (and  for  that 
purpose  all  force  is  excessive)  ^  restoration  of  the  possession 
may  be  obtained  by  an  action  of  forcible  entry,  but  trespass 
q«.  cl.  will  not  lie.  *  *  *  The  same  argument  that  induced 
the  decision  to  the  contrary  in  lieeder  v.  Purdy,  41  111.  279,  has 
more  than  once  been  held  specious  in  England. ' '  A  little  further 
on  he  continues:  "The  true  rule  is  laid  down  in  Hoots  v. 
Graham,  23  111.  81,^  where  it  is  said  'no  case  has  been  referred 
to,  and  it  is  believed  none  exists  which  holds  that  a  trespasser  or 
a  person  in  possession  as  a  wrong  doer  can  recover  against  the 
owner  of  the  fee,  wdth  right  of  possession.  Such  a  rule  would 
be  an  end  to  the  enjoyment  of  property  and  its  protection  by 
judicial  determination.  It  would  be  to  hold  that  the  actual 
possession  however  acquired,  was  paramount  title.'  The  ex- 
perience of  the  last  twenty-five  years  in  this  city  [Chicago] 
justifies  the  statement  that  also  under  it  blackmail  is  lawful 
gain."  In  White  v.  Naerup  ^  he  said :  "This  court  has  gone  back 
to  the  common  law,  as  held  in  Hoots  v.  Graham,  23  111.  81,  that 
a  trespasser  or  a  person  in  possession  as  a  wrong  doer  cannot 
recover  against  the  owner  of  the  fee  with  right  of  possession. 

§273.  Sustained  "by  other  judges:  The  four  cases,  where 
the  opinions  of  the  court  were  given  by  other  judges,  seem  to 
back  up  the  clear  cut  views  of  Judge  Gary.'^  In  Chicago  &  W.  I. 
R.  R.  Co.  V.  Slee,^  Judge  Moran  seems  to  have  laid  it  down  as 
law  that  in  trespass  qu.  cl.  fr.  the  right  to  possession  alone  is  a 
good  defence,  making  no  qualification  that  the  entry  must  be 

2  The  Court  here  goes  on  to  say  s  44  m.  App.  61,  67. 

that    Reeder    v.    Purdy    was    based  •*  This  may   well   be  doubted,   see 

upon  Duston  v.  Cowdry,  23  Vt.  631,  ante,  §§  267-269. 

and    that    the    latter    was    in    turn  s  This  is   repeated   in  Ostatag   v. 

based  upon  Newton  v.   Harland,   1  Taylor,  44  111.  App.  469,  470. 

M.  &  Gr.  644,  1  Scott,  N.  R.  474,  8  57  111.  App.  114,  118. 

which   "has   been   long    since   over-  "!  Ante,   §272. 

ruled     in     England. ' '       This     last  » 33  111.  App.  416. 

would    seem    incorrect.       See    ante,  , 
§262. 

282 


Ch.  XIII]  CONDITIONAL   ESTATES  [§275 

peaceable.  In  Eichengreen  v.  Appei;-'  Judge  Waterman  said: 
"Proceeding  with  reasonable  notice,  in  a  reasonable  manner  and 
with  no  unnecessary  rigor,  as  appellant  did,  appellee  has  no 
cause  of  action  because  appellant  merely  took  what  belonged  to 
him  and  which  appellee  held  without  right."  ^"  In  Mueller  v. 
Kuhn^^  Judge  Shepard  said:  "The  principal  vice  in  each  of 
the  instructions  consists  in  the  assumption  of  the  first  and  the 
expression  of  the  sixth  that  a  landlord  may  not  re-enter  and 
retake  possession  of  his  premises  withheld  by  a  tenant  in  pos- 
session after  the  determination  of  a  lease,  except  by  process  of 
law.  It  would  put  an  end  to  the  enjoyment  of  property  to  hold 
that  trespass  quare  clausum  f regit  could  be  maintained  against 
the  owner,  with  right  of  possession,  who  merely  takes  possession 
of  what  is  his  own," 

§274.  Contrai-y  to  the  rule  of  the  Supreme  Court:  If  the 
writer  is  correct  in  finding  the  doctrine  of  our  Supreme  Court 
to  be  that  the  right  to  possession  is  only  a  defence  in  trespass 
qu.  cl.  jr.  when  the  entry  of  the  defendant  iS  peaceable  as  dis- 
tinguished from  an  entry  with  actual  force  and  violence,!^  it 
is  plain  that  the  appellate  court  of  the  first  district  has  tempered 
justice  with  mercy  for  the  landlord  or  landowner.  It  apparently 
allows  the  one  entitled  to  possession  to  use  as  much  force  as  may 
be  necessary  up  to  the  point  of  committing  a  breach  of  the  peace. 
It  would  apparently  regard  the  plea  of  Uherum  tenementum  in 
the  form  given  by  Chitty  ^^  as  a  good  defence.  To  this  extent 
the  rule  of  the  appellate  court  in  the  first  district  is  materially 
different  from  that  of  our  supreme  court. 

§  275.  In  trespass  for  assault  and  battery  and  de  bonis  as- 
portatis:  How  the  appellate  court  of  the  first  district  w^ould 
hold  when  the  action  is  for  assault  and  batteiy  or  de  bonis  aspor- 
tatis  instead  of  quare  clausum  fregit  is  not  clear.  There  seems 
to  be  not  much  doubt  but  that  Judge  Gar>'  would  hold  the 
defence  of  right  to  possession  good,— the  plaintiff  being  left  to 
recover  if  at  all,  under  a  replication  alleging  excessive  force  or 
perhaps  a  breach  of  the  peace.  In  Ostatag  v.  Taylor^*  the 
learned  judge  says :    "No  trespass  is  committed  in  taking  posses- 

9  44  111.  App.  19,  20.  11  46  111.  App.  496. 

10  See    also    the    remarks    of    the  12  ^nff,  §§  261,  267-269. 
same  learned  judge  in  Mead  v.  Pol-  isjji/e,  §265. 

lock,  99  111.  151,  154.  '*  44  111.   App.  469.  470. 

283 


§  276]  FUTURE   INTERESTS  [Ch,  XIII 

sion  of  one 's  own ;  we  add,  if  an  assault  is  committed  in  so  doing, 
it  maj^  or  not,  be  justifiable. ' '  On  the  other  hand  Judge  Shepard 
in  Mueller  v.  KuJvn'^^  suggests  the  distinction  recognized  by  the 
English  cases  that  it  is  only  in  trespass  qu.  cl.  ft:  that  the  defence 
of  right  to  possession  is  valid  even  when  the  entry  is  forcible.  In 
that  case  the  declaration  contained  counts  in  trespass  for  assault 
de  bonis  aspovtatis,  and  quare  clausum  f regit.  The  instructions 
were  general  and  calculated  to  give  the  jury  to  understand  that 
no  entry  could  be  made  hy  one  entitled  to  possession  except  by 
process  of  law.  These  instructions  were  held  bad  only  because 
they  led  the  jury  to  believe  that,  for  the  mere  entry  into  the  land, 
there  was  no  defence  and  the  judgment  for  the  plaintiff  was 
reversed  because  the  jury  might  have  given  damages  for  the 
mere  entry  upon  the  land.  The  natural  inference  is  that  the 
court  was  by  no  means  prepared  to  say  that  in  trespass  for  as- 
sault and  de  bonis  asportotis  the  defence  of  right  to  possession 
was  valid  under  any  circumstances,  much  less  when  the  entry 
was  forcible. 

§  276.  Defence  of  leave  and  license :  Our  Supreme  Court, 
having  adhered  to  the  view  that  Sec.  1  of  the  forcible  entry  and 
detainer  statutes  of  1827  and  1872  prohibited  all  entry  with 
actual  force  by  him  w'ho  had  the  right  to  possession,  so  that  the 
one  so  entering  was  without  defence  in  trespass  qu.  cl.  jr.,  d.  b. 
n.,  or  for  assault  and  battery, ^"^  it  remains  to  be  inquired  how 
far  a  plea  of  leave  and  license  may  be  a  good  defence  to  an 
entry  with  actual  force.  ^'^ 

If  the  forcible  entry  by  one  having  the  immediate  right  of 
possession  be  prohibited  by  statute,  and  if  such  statutory  pro- 
hibition be  based  upon  the  injury  to  the  public  which  arises 
from  such  entries,  rather  than  upon  the  conferring  of  any 
benefit  to  the  one  wrongfully  holding  possession,  on  what  ground 

15  46  111.  App.  496.  As    we   have    seen    (ante,    §270), 

if^Ante,  §§264-266.  the   forcible  entry   or  the  peaceable 

17  It    is    not    believed    that    any  entry    and    putting    out    of    the    oc- 

proper  distinction  can  be  made  be-  cupant  by  force  are  within  the  pro- 

tween    a   license    to    enter   with    as  hibition  of  the  Forcible  Entry  and 

much    force    as    may    be    necessary  Detainer    statutes.      Compare,   how- 

and  a  license  to  expel  and  put  out  ever,   Fifty  Associates  v.   Rowland, 

the   occupant   and   his   goods,   using  5  Cush.   (Mass.)   214. 
as    much    force    as    may    be    neces- 
sary. 

284 


Ch.  XIII]  CONDITIONAL    ESTATES  [§276 

can  a  plea  of  leave  and  license  to  a  forcible  entry  be  sup- 
ported? ^**  It  was  very  pertinently  suggested  by  Judge  Gary  in 
Frazier  v.  Caruthers,^^*  that  if  the  forcible  entry  and  detainer 
statute  prohibits  the  entry  then  no  plea  of  leave  and  license  was 
good,  because  the  parties  should  not  by  their  agreement  be  al- 
lowed to  permit  that  to  be  done  which  by  a  statute  pro  bono 
puhlico  is  prohibited.  Yet  nothing  now  seems  clearer  under  the 
authorities  in  this  state  -"  than  that  such  a  defence  is  valid,  and 
that,  too,  quite  regardless  of  whether  the  plaintiff  counts  in  tres- 
pass for  assault  and  battery ,21  de  bonis  asportatis^-  or  quare 
clausum  fregit.'-^ 

The  logical  difificulty  with  this  result  is  recognized  in  a  curious 
way  in  French  v.  Wilier.-'^  There  the  question  was  whether 
a  power  of  attorney  to  confess  judgment  in  a  forcible  entry  and 
detainer  suit  was  valid  or  not.  The  majority  of  the  court 
argued  that  only  the  legislature  could  authorize  such  a  pro- 
ceeding, since  it  would  be  contrary  to  the  mode  of  suit  prescribed 
by  the  forcible  entrj-  and  detainer  statute.  To  this  the  three 
minority  judges  replied  that  if  leave  and  license  was  a  good 
defence  to  the  forcible  entry  prohibited  by  the  forcible  entry  and 
detainer  statute  there  was  no  reason  why  the  parties  miglit  not, 
by  their  agreement,  so  far  alter  the  mode  of  suit  prescribed 
by  the  statute  as  to  make  lawful  the  confession  of  judgment 
in  an  action  of  forcible  entry  and  detainer.  It  may  well  be 
assumed  that  the  retort  of  the  majority  of  the  court  was  that 
so  far  as  the  plea  of  leave  and  license  was  a  defence  to  an  of- 

18  Note  that  where,  as  in  Massa-  by  the  defendant  and  could  only  go 

chusetts,     they     deny     the     forcible  in  mitigation  of  damages, 
entry    and     detainer    statutes    any  20  Ambrose   v.  Boot,   11   111.  497; 

effect  except  to  give  a  civil  remedy  Page  v.  De  Puy,  40  111.  506;  Fabri 

for  restitution   {ante,  §262)   a  plea  v.    Bryan,    80   111.    182;    Mueller    v. 

of    leave    and    license    is    unneces-  Kuhn,   46   111.   App.   496;    Schaeffer 

sary.     A  fortiori,  it  is  suflfieient.  v.  Silvcrstein,  46  111.  App.  608;  and 

1944   111.    App.  61,   67.      Sec   also  Wetzel    ;•.    Morangcr,    85    111.    App 

Marks  v.  Gartside,  16  111.  App.  177,  457,  may  be  cases  of  the  same  sort 
179,  where  the  plea  in  trespass  set  21  Ambrose   v.    Root,    11    111.   497 

up   leave   and   license   to    the   land-  --  Fabri    v.   Bryan,    80    111.    182 

lord,  who  was  defendant,  to  enter  Mueller  v.  Kuhn,  46  111.  App.  496 
aYid    repair.      The    Court    suggested  -a  Page   v.   De  Puy,   40   111.   506 

that    under    the    Rooder    v.    Purdy  Fabri  v.  Bryan,   80  111.   182;   Muel 

{ante,    §§  264-266)    doctrine   such   a  ler  v.  Kuhn,  46  111.  App.  496. 
plea    was   no    defense    to    the   entry  -*  126   111.   611. 

285 


§  277]  FUTURE  INTERESTS  .   [Ch.  XIII 

fense  against  the  public  prohibited  by  the  forcible  entry  and 
detainer  statute  its  admission  was  illogical  and  anomalous  and 
it  should  not  be  made  the  basis  for  a  further  anomaly. 

Perhaps  the  best  ground  for  the  rule  that  the  plea  of  leave 
and  license  is  good  in  trespass  for  a  forcible  entry  is  to  be 
found  in  the  illogical  punishment  which  our  forcible  entry  and 
detainer  statute  furnishes.  Logically  the  entry  should  be  made 
a  crime  and  prosecuted  as  such,  and  the  punishment  by  fine 
or  imprisonment  be  exacted  by  the  state.  The  one  dispossessed 
should  be  restored  to  possession  unless  the  one  entering  were 
entitled  to  it.  This  was  the  theory  upon  which  the  English 
statutes  operated.  Newton  v.  Harland  ^^  broke  the  symmetry 
of  these  results  and  it  is  not  inconceivable  that  the  illogical 
step  taken  in  that  case  might,  in  order  to  correct  to  some  ex- 
tent the  first  error,  have  led  to  the  further  illogical  position 
that  a  plea  of  leave  and  license  in  trespass  for  assault  and  bat- 
tery or  d.  h.  a.  is  valid. ^^  So  long,  however,  as  our  forcible 
entry  and  detainer  statutes  punished  the  offence  against  the 
public  by  permitting  the  person  entered  upon  to  pocket  the 
fine  awarded  in  the  shape  of  actual  and  punitive  damages  in 
an  action  of  tort  against  the  person  forcibly  entering — a  remedy 
in  form  purely  civil — it  was  not  unnatural  that  the  usual  prin- 
ciples applicable  to  such  suits  should  prevail.  In  short,  if  the 
forcible  entry  and  detainer  statutes,  apart  from  restoring  pos- 
session, did  no  more  than  give  the  one  put  out  forcibly  by  him 
who  had  the  right  to  possession,  a  civil  remedy,  why  should 
not  the  plea  of  leave  and  license  be  good? 

§  277.  H«w  far  equity  will  enforce  a  forfeiture :  Where  no 
forfeiture  has  been  perfected  by  entry  or  ejectment,  a  proceed- 
ing in  equity  cannot  itself  be  used  as  an  act  of  forfeiture .2 ''^ 

25  1  M.  &  G.  644 ;  1  Scott,  N.  E.  as  being  in  effect  a  license  to  com- 
474;  ante,  §262.  mit  a  crime"  under  the  statute  of 

26  Cf.  Kavanagh   v.   Gudge,   7  M.       Richard  II. 

&    G.    316.      There    is,    however,    a  27  Hart  v.  Lake,  273  III.  60;  Gol- 

dictum    in    Edwick    v.    Hawkes,    18  conda  Ry.  v.  Gulf  Lines  R.  R.,  265 

Ch.  Div.  199,  208,  to  the  effect  that  111.    194    (semble) ;    Mott    v.    Dan- 

a  leave  and  license  given  by  a  ten-  ville    Seminary,    129    111.    403,    416 

ant    to    his    landlord    to    enter    and  (semble)  ;    Warner    v.    Bennett,    31 

"upon  so  entering  to  use  all  neces-  Conn.  468,  478;  Donnelly  v.  Eastes, 

sary  force  in  putting  out  the  plain  94  Wis.  390. 
tiff  and  his  family"  would  be  "void 

286 


Oil.  Xlllj  CONDITIONAL   ESTATES  I §'^78 

Where  a  forfeiture  has  been  perfected  the  remedy  at  law  for 
possession  is  adequate,  and  a  l)ill  in  equity  praying  for  a  de- 
cree that  the  premises  might  be  forfeited  by  reason  of  a  breach 
of  condition  would  seem  to  be  iraproper.28     If,  however,  the 
interest  is  forfeited  and  the  one  having  the  legal  title  has  such 
possession,  and  the  acts  of  him  whose  interest  has  been  for- 
feited are  such,  that  equity  could  grant  relief,  apart  from  any 
question  of  forfeiture,  then  the  bill  may  lie.     Thus,  where  the 
defendant  had  an  easement  over  the  plaintiff's  land  which  was 
subject  to  forfeiture  for  breach  of  a  condition  subsequent,  our 
supreme  court  declared  the  mere  filing  of  a  bill  sufficient  com- 
pletion of  forfeiture  and  then  allowed  the  bill  on  the  ground  that 
it  was  filed  to  restrain  repeated  and  continuous  trespasses  upon 
the  complainant's  land.^'J     Again,  since  the  grantee  or  lessee, 
whose  interest  lias  been  legally  forfeited  for  breach  of  condi- 
tion has  a  right  in  equity  under  some  circumstances — especially 
when  the  forfeiture  is  for  nonpayment  of  rent  or  money— to 
redeem   from  such   forfeiture,^"   no   reason   is   perceived  why, 
after  a  legal  forfeiture,  he  may  not  file  a  bill  to  foreclose  the 
right  to  redeem,  just  as  a  mortgagee  files  a  bill  to  foreclose  the 
mortgagor's  equity  to  redeem  or  the  vendor  sues  to  end  the 
vendee's  equity  to  purchase.     It  would  seem  as  if  the  bill  ef 
the  appellee  in  Crandall  v.  Sorg  ^^  might  have  been  sustained 
on  this  ground  since  he  had  declared  his  forfeiture  and  was 
in  possession.     The  appellate  court,  however,  directed  the  bill 
to  be  dismissed,  because  equity  would  not  enforce  a  forfeiture. 

TITLE  VI. 
RELIEF  AGAINST  FORFEITURE. 

§278.  At  law— Several  methods  of  relief:  The  common 
law  tempered  the  rigors  of  forfeiture  in  several  ways — by  de- 
claring the  estate  merely  voidable  and  not  void  when  the  breach 
occurred-^' — by  requiring  some  further  act  on  the  part  of  the 
grantor  or  lessor  to  complete  the  forfeiture,  as  an  entry  in  the 

=8  Douglas  r.   Union  Mutual  Life  ^9  Lyman  v.  Suburban  R.  R.  Co., 

Ins.  Co.,  127  111.  101,  116  {semhle)  ;  190   111.   320. 
Toledo,  St.  L.  &  N.  O.  R.  R.  Co.  v.  3o  Fost,   §  282. 

St.  Louis  &  O.  R.  R.  Co.,  208  HI.  3i  99  111.  App.  22. 

623.  32j„<e,  §243. 

287 


§279]  FUTURE   INTERESTS  [Ch.  XIII 

case  of  the  forfeiture  of  a  freehold  estate,^^  or  an  election  in 
the  ease  of  the  forfeiture  of  a  term  for  years  ^^ — and,  in  the 
case  of  a  forfeiture  for  the  nonpayment  of  rent,  a  very  par- 
ticular sort  of  a  demand  for  rent.^'^ 

§279.  License:  ^'^  By  the  rule  in  Dumpor's  case  a  con- 
sent, once  having  been  obtained  to  assign  contrary  to  the  pro- 
visions of  the  covenant  against  assignment,  any  further  assign- 
ment might  be  made  without  consent,  and  that,  too,  whether 
the  first  consent  was  to  assign  "to  any  person  or  persons  what- 
soever,"-'" or  to  a  single  specified  person.''^  From  the  lan- 
guage of  our  supreme  court  in  Kew  v.  Trainor  ^^  there  must 
be  a  doubt  whether  it  would  recognize  Dumpor's  case  at  all  as 
law."*"  It  is  even  probable  that,  if  it  did  recognize  it,  the  rule 
would  be  confined  strictly  to  the  facts  of  Dumpor's  case  where 
the  consent  was  to  assign  "to  any  person  or  persons  whatso- 
ever," and  not  applied  to  the  common  case  of  the  consent  to 
an  assignment  to  a  particular  person.  At  all  events,  it  is  per- 
fectly clear  that  wlien  the  lessor  consents  to  an  assignment 
with  an  express  proviso  "that  no  further  assignment  of  said 
lease  or  subletting  of  the  premises,  or  any  part  thereof,  shall 
be  made  without  my  written  consent  first  had  thereto,"  no 
further  assignment  can  be  made  without  such  written  consent.^  ^ 
If  that  be  so,  why  would  not  a  clause  inserted  in  the  lease  itself 
to  the  effect  that  one  consent  to  an  assignment  should  not  waive 
the  required  consent  for  any  future  assignment,  be  sufficient 
to  abrogate  the  rule  in  Dumpor's  case? 

§  280.  Waiver:  ^^  of  course  there  is  no  question  about  the 
validity  of  any  express  release  of  the  right  to  declare  or  com- 
plete a  forfeiture.^'^    The  common  law,  however,  in  its  endeavor 

^^  Ante,  §244.  14    Ves.    17."};    5    Gray's    Cases    on 

34  Ante,   §  24.5.  Prop.,  2nd  ed.  20. 

35  Ante,  §  245.     Observe  also  that  39  150  111.  150,   1.57. 

the   tendency    was'  to   construe   pro-  40  But   see  Voris   v.   Renshaw,   49 

visions    as    covenants    rather    than  111.  425. 

conditions:       Gallaher    v.    Herbert,  *!  Kew   v.    Trainor,   150   111.   150; 

117  111.  160.  Springer    v.     Chicago    Real    Estate 

■■-''■'Post,  §280,  note  43.  Loan  Co.,  202  111.   17    {semble). 

37  Dumpor's  Case  (1603),  4  Co.  *'- See  Chicago  v.  Chicago  &  W. 
119b;  5  Gray's  Cases  on  Prop.,  2nd  I.  R.  R.  Co.,  105  111.  73. 

ed.  16.  43  The    common    case    of    this    is 

38  Brummell  ".  Macpherson  (1807),       where   the   landlord    gives   a   license 

288 


Cu.  XlllJ 


CONDITK )NAL    ESTATES 


§280 


to  soften  the  hardships  oi'  forfeiture  went  farther  than  this. 
Both  at  law  and  in  equity  our  Supreme  Court  has  assumed  that 
the  holder  of  a  right  of  entry  upon  a  fee  for  Ij reach  of  condi- 
tion may,  by  his  arts,  waive  the  breaek  of  tlie  condition.'*^  It 
has  been  said  tliat  "any  aet  done  by  a  landlord  knowing  of 
a  cause  of  forfeiture  by  his  tenant,  affirming  the  existence  of 
the  lease,  and  recognizing  the  lessee,  is  a  waiver  of  such  for- 
feiture." ^•"'  Thus  if  the  landlord  assents  to  certain  acts  which, 
in  effect,  recognize  the  existence  of  the  tenancy,  that  is  a  waiver 
though  the  landlord  never  actually  thought  about  any  waiver 
at  all.  The  receipt  of  rent  due  for  a  period  subsequent  to  the 
happening  of  the  breach  of  condition  amounts  to  a  waiver  of 
the  cause  of  forfeiture  in  the  absence  of  any  express  reserva- 
tion of  the  right  to  declare  a  forfeiture  in  spite  of  the  receipt 
of  rent.^°     In  the  same  way  other  acts,  which  recognize  the 


or  consent  to  tlie  tenant  to  do  such 
acts  as  would  amount  to  a  breach 
of  the  terms  and  conditions  of  such 
lease  were  it  not  for  such  consent: 
Moses  V.  Looniis,  156  111.  392  (con- 
sent by  parol). 

<•*  Sherman  v.  Town  of  Jefferson, 
274  111.  294;  Sanitary  Dist.  v.  Chi- 
cago Title  &  Trust  Co.,  278  111. 
529. 

«  Webster  v.  Nichols,  104  111.  160, 
172.  See  also  Channel  v.  Merri- 
field,  106  111.  App.  243,  where  the 
tenant 's  right  to  terminate  the 
lease  by  30  days'  notice  after  fail- 
ure of  the  lessor  to  furnish  power 
was  waived  by  tenant 's  remaining 
in  possession  after  the  expiration 
of  the  30  days.  In  the  Supreme 
Court  this  was  reversed  (206  111. 
278)  on  the  ground  that  the  lessor 
had  the  30  days  in  which  to  begin 
again  to  keep  hia  covenant  and 
avoid  the  forfeiture  so  that  the 
lessee  did  not  have  to  move  until  a 
reasonable  time  after  the  30  days 
expired. 

"Watson  r.  Fletcher,  49  111.  498; 
Webster    v.    Nichols,    104    111.    160, 


172;  Stromberg  v.  Western  Tel. 
Cons.   Co.,   86   111.   App.   270. 

Gradle  v.  Warner,  140  111.  123, 
seems  to  be  practically  a  case  of 
waiver  by  acceptance  of  rent.  The 
rent  was  tendered  in  the  shape  of 
a  certificate  of  deposit  for  more 
than  the  rent  itself,  and  the  land- 
lord did  not  settle  the  question  of 
rent  then  because  the  change  was 
not  to  be  had. 

Meath  v.  Watson,  76  111.  App. 
516,  seems  curiously  reactionary. 
It  is  hardly  to  be  supported  as  it 
is  reported.  There  the  tenant  sub- 
let in  violation  of  the  lease  on  July 
30th.  On  August  1st  "the  original 
tenant  paid  by  cheek  $100  rent  for 
August  in  advance,  as  by  the  terms 
of  the  lease,  and  then  informed  the 
agent  of  appellee  of  the  sublet- 
ting." The  Court  said  there  was 
no  merit  in  the  contention  that  this 
receipt  of  rent  amounted  to  a  waiver 
of  the  cause  of  forfeiture.  If,  as 
seems  to  have  been  the  case,  the  in- 
formation of  the  subletting  was 
given  at  the  same  time  as  the  giv- 
ing   of    the    check,    this    would    be 


Kales  Fut.  Int. — 19 


289 


§280]  FUTURE    INTERESTS  [Ch.  XIII 

existence  of  a  tenancy,  amount  to  a  waiver.  A  notice  to  quit 
for  nonpayment  of  rent  is  a  recognition  of  the  tenancy  up  to 
that  time  and  waives  a  cause  of  forfeiture  arising  from  sub- 
letting.'*' So,  it  was  recently  intimated, ^^  ^\^^i  h^q  conveyance 
by  the  landlord  of  the  reversion  subject  to  the  lease  was  a 
waiver  of  any  cause  of  forfeiture  which  had  then  accrued. 

The  question  has  not  yet  arisen  in  this  state  whether,  in  the 
interest  of  preventing  forfeitures,  it  shall  be  held  that  the 
acts  of  the  landlord,  which  recognize  the  existence  of  a  tenancy, 
amount  to  a  waiver  of  forfeiture  by  operation  of  law,  so  that 
an  express  reservation  by  the  landlord  that  the  receipt  of  rent 
or  other  act  shall  not,  in  a  particular  case,  amount  to  a  waiver 
of  any  existing  cause  of  forfeiture,  will  be  ineffective  to  prevent 
the  waiver.  When  this  question  arises  it  is  likely  to  be  argued 
from  Kew  v.  Trainor  ^^  that  the  rule  that  the  consent  to  one 
assignment  by  the  tenant  waives  the  requirement  of  any  con- 
sent for  any  future  assignment  was  a  Avaiver  by  operation  of 
law,  and  that  if  the  landlord  by  express  proviso  may  prevent 
the  operation  of  this  rule  of  law,  why  may  he  not,  in  the  same 
way,  prevent  the  operation  of  a  rule  of  law  which  declares  that 
the  acceptance  of  rent  for  a  period  subsequent  to  the  occurrence 
of  the  cause  of  forfeiture  is  a  waiver  of  such  cause?  It  is  con- 
ceived that  this  argument,  while  logically  sound,  overlooks  the 
fact  that  the  rule  of  Dumpor's  case  is  barely  tolerated,  if  it  is 
tolerated  at  all,  in  this  state,  and  that  the  desperate  inclination 
to  get  away  from  it  led  to  the  decision  in  Kew  v.  Trainor.  On 
the  other  hand  the  general  rule  that  waivers  of  forfeiture  occur 
by  operation  of  law  in  certain  cases — especially  by  the  receipt 
of  rent — is  the  direct  outcome  of  a  sound  public  policy  which 
seeks  to  prevent  forfeitures.  Our  supreme  court  may,  there- 
fore, well  say,  when  the  time  comes,  that  a  landlord  cannot  be 
permitted  to  receive  rent  and  at  the  same  time  keep  available 
a  cause  of  forfeiture.-''"^ 

wrong.      The    case    may    have    been  4u  150  111.  inO;  ante,  §279. 

decided  correctly  upon  another  cause  s"  Davenport     v.     The     Queen,     3 

of  forfeiture  which  was  not  waived.  App.   Cas.   115;   5  Gray's  Cases  on 

47  Frazier  v.  Caruthers,  44  111.  Prop.,  2nd  ed.  .'56;  Croft  1;.  Lumley, 
App.    61;     Dockrill    v.    Schenk,    ?,7  6  H.  L.  C.  672. 

111.  App.  44. 

48  McConnell    v.    Pierce,    210    III. 
627. 

290 


Ch.  XllI]  CONDITIONAL    ESTATES  [§282 

§281.  Estoppel:  Ilawes  v.  Favor, ''^  was  entirely  disposed 
of  on  the  ground  that  no  conditions  were  broken  by  the  tenant. 
At  the  end  of  its  opinion,  however,  the  court  says  that  even 
if  there  had  been  a  breach  tiie  landlord  had  waived  his  riglit 
of  forfeiture  because  he  stood  by  wiiilc  hirge  sums  of  money 
were  being  expended  by  the  tenant  in  the  improvements  and 
alterations  which  formed  the  basis  of  the  alleged  cause  of  for- 
feiture. It  may  well  be  questioned  whether  this  diction  is 
sound.  Can  there  be  a  waiver  from  mere  inaction  when  there 
is  no  legal  duty  to  act  ?  Are  we  to  infer  that  the  landlord,  when 
he  knows  that  the  tenant  is  spending  money  in  doing  certain 
things  whicli  may  amount  to  a  cause  of  forfeiture,  must  warn 
the  tenant  that  his  acts  arc  amounting  to  a  cause  of  forfeiture? 
That  would  be  a  serious  enough  proposition.  Tlie  dictum  of 
the  court  seems,  however,  to  go  even  farther.  It  appears  from 
the  opinion  of  the  court  that  it  must  iiave  been  very  difficult 
to  tell  whether  the  acts  of  the  tenant  in  rebuilding  amounted 
to  a  breacii  of  the  condition  or  not.  The  landlord,  it  seems,  did 
not,  during  the  time  that  the  changes  were  being  made,  file  a 
bill  for  an  injunction  because  it  was  very  doubtful  if  the  acts 
of  the  tenant  amounted  to  a  breach  of  covenant.  The  inquiries 
of  the  landlord  as  to  what  was  being  done,  and  out  of  which 
the  court  raised  the  waiver  or  estoppel  to  declare  a  forfeiture, 
seem  to  have  been  made  in  order  to  find  out  whether  there  was 
a  breach  of  the  covenant  or  not,  and  apparently  he  did  not 
make  up  his  mind  that  there  was  a  cause  of  forfeiture  until 
the  tenant's  alterations  were  completed.  The  position  of  the 
court  would,  then,  seem  to  go  to  the  length  of  requiring  the 
landlord,  whenever  he  perceived  any  act  of  the  tenant,  whicli 
cost  the  tenant  money,  and  which  might  result  in  a  breach  of 
condition,  to  give  notice  to  the  tenant  that,  if  his  acts  did 
result  in  a  breach  of  condition,  he,  the  landlord,  would  forfeit 
the  lease.^- 

§  282.  In  equity:  The  principle  applied  by  courts  of  equity 
is  that  where  the  only  daniage  suffered  by  the  party  declaring  the 
forfeiture  could  be  fully  compensated  for  in  money,  equity  would 
relieve  against  the  forfeiture  ;is  a  iiuitter  of  course.     Thus  the 

•"'1  161    111.   441).  the  comlition   was  created  is  no  e.\- 

5- Impossibility  in  the  peiloiiii-  cuse :  Sherman  v.  Town  of  .Jeffer- 
anec  of  the  condition   arising   after       son,  274  111.  294;   post,  §§749-750. 

291 


§  282]  FUTURE    INTERESTS  [Ch.  XIII 

jurisdiction  of  equity  has  been  asserted  to  relieve  against  for- 
feiture for  nonpayment  of  rent,-'"'*  for  nonpajnnent  of  taxes  and 
assessments,^^  and  for  the  breach  of  a  condition  in  not  laying  out 
a  specific  sum  in  repairs/'*'  Beyond  this  it  is  doubtful  how  far 
equity  will  go.  It  has  been  held  that  equity  will  not  relieve 
against  a  forfeiture  founded  on  the  breach  of  a  covenant  not  to 
assign  or  sublet/''''  or  to  insure,^* 

There  seems,  however,  not  to  have  been  much  resort  in  this 
state  to  equity  by  tenants  to  obtain  relief  against  forfeitures 
already  declared,^^  even  for  nonpayment  of  rent.^*^  In  Palmer 
V.  Ford  *'i  the  tenant  filed  a  bill  for  an  accounting  and  relief, 
after  forfeiture  for  nonpayment  of  rent  had  been  declared  and 
notice  served.  The  lessee  offered  to  paj'  whatever  should  be 
found  to  be  due  and  prayed  that  the  lessor  be  restrained  from 
•prosecuting  suits  for  possession  against  his  sub-tenants ;  that  an 
account  be  taken  and  that  he  be  restored  to  possession  of  the 
premises  under  the  lease.  The  chief  question  discussed  by  the 
supreme  court  was  whether  there  was  any  equity  in  the  bill.  It 
would  seem  as  if  the  bill  might  have  been  sustained  as  an  effort 
by  the  tenant  to  redeem  from  a  forfeiture  for  nonpayment  of 
rent,  provided  the  time  for  such  redemption  had  not  gone  by. 
But  the  court  distinctly  said  that  if  the  forfeiture  w^as  well  de- 

■5^  Abramsi;.  Watson,  59  Ala.  524;  ^s  Eolfe   v.    Harris,  2   Price,   206; 

Little    Eock    Granite    Co.    v.    Shall,  Eeynolds  t'.  Pitt,  19  Vcs.  134;  White 

59    Ark.    405;    Wilson   v.    Jones    &  v.  Warner,   2  Meriv.   459;    Green  v. 

Tapp,  64  Ky.   (1  Bush)   173;  Lilley  Bridges,   4    Sim.    96.      Where,    how- 

i\  Fifty  Associates,  101  Mass.  432;  ever,  the  failure  to  insure  was  due 

Sunday  Lake  Mining  Co.   v.  Wake-  to  accident  or  mistake,  and  no  actual 

field,  72  Wis.  204;   Merrill  v.  Trim-  damage  had  occurred   to  the  lessor, 

mer,  2  Pa.  Co.  Ct.  Rep.  49.  relief  was  given  in  equity:  Mactier 

55  Giles  V.  Austin,  62   N.   Y.  486.  v.  Osborne,  146  Mass.  399. 

5c  Sanders   v.   Pope,   12  Ves.   282.  59  in     Wilmington     Star     Mining 

But  this  was  doubted  by  Lord  El-  Co.  v.  Allen,  95  111.  288,  no  question 

don  in  Hill  v.  Barclay,  16  Ves.  401,  of    this    sort    seems    to    have    been 

and  18  Ves.  56,  where  it  was  held  raised.      But     see    Cusack    v.    The 

that  equity  would  not  relieve  against  Gunning  System,  109  111.  App.  588. 

a    forfeiture    occurring    because    of  «o  in   Gradle   v.   Warner,   140    111. 

the   breach   of   a   condition   to   keep  123,  the  Court  found  a  waiver  of  a 

premises  in  repair.  cause  of  forfeiture  for  non-payment 

57  Wafer    v.    Mocato,    9    Modern,  of  rent,  instead  of  suggesting  that 

112;   Davies  v.  Moreton,  2^  Ch.  Cas.  relief  might  be  had  from  forfeiture 

127;  Lovat  v.  Lord  Ranelagh,  3  Ves.  under  the  circumstances. 

&  B.  24,  31.  •■•>  70  111.  369. 

292 


Ch.  XIll]  CONDITIONAL    EtSTATES  [§283 

clared  then  the  bill  ought  to  have  been  dismissed.  The  suit  was, 
however,  sustained  upon  the  ground  that  tiie  forfeiture  actually 
declared  had  been  waived  by  the  lessor  and  that  the  plaintiff  was 
entitled  to  relief  because  of  the  accounting  prayed  for. 

In  Sanitarij  District  v.  (Jhicuigo  Title  d:  Trust  Co.,'''-  our  Su- 
preme Court  said:  "Equity  will  sometimes  relieve  against  the 
consociuences  of  a  breach  of  condition  and  save  from  forfeiture 
an  estate  which  has  vested  and  is  in  danger  of  being  defeated 
by  a  failure  to  perforin  a  condition  subsequent,  when  tiie  breach 
was  not  willful,  the  injury  can  be  ade<|uately  compensated  by 
damages  and  there  is  a  certain  rule  by  which  to  measure  the 
damages. ' ' 

In  Springfield  <nul  Xorfhwrster)!  Tract  ion  Co.  v.  Warrii'k,'''' 
the  court  held  that  ecjuity  would  relieve  from  forfeiture  a  rail- 
way which  (lid  not  comi)ly  with  a  condition  that  it  finish  its  line 
in  two  years,  when  it  in  fact  finished  the  line  four  months  after 
that  time.  The  complainants,  however,  were  required  to  offer 
and  to  do  equity  by  the  payment  of  damages  which  the  breach 
caused,  and  tlie  defendant  was  entitled  to  such  damages  without 
the  necessit}'  of  tiling  a  cross  bill. 

TITLE  VII. 

RIGHT  OF  ENTRY  FOR  CONDITION  BROKEN  DISTINGUISHED 
FROM  A  POSSIBILITY  OF  REVERTER— RIGHTS  OF  THE  DEDI- 
CATOR AND  ABUTTING  O^VNER  ON  A  STATUTORY  DEDICA- 
TION. 

§  283.  Distinction  between  a  right  of  entry  for  condition 
broken  and  a  possibility  of  reverter:  "The  distinction,"  ac- 
cording to  Professor  Gray  in  his  Rule  against  Perpetuities,''^  is 
this :  "after  the  statute  [of  quia  emptores],  a  feoffer,  by  the  feoff- 
ment, substituted  the  feoffee  for  himself  as  his  lord's  tenant.  By 
entry  for  breach  of  condition,  he  avoided  the  substitution,  and 
placed  himself  in  the  same  position  to  the  lord  which  he  had  for- 
merly occupied.  The  right  to  enter  was  not  a  reversionary  right 
coming  into  effect  on  the  termination  of  an  estate,  but  was  the 
right  to  substitute  the  estate  of  the  grantor  for  the  estate  of  the 
grantee.  A  possibility  of  reverter,  on  the  other  hand,  did  not 
work  the  substitution  of  one  estate  for  another,  but  was  essen- 

62  278  111.   529,  54.3.  04  ^  245. 

63  249  111.  470. 

293 


§  284; 


FUTURE   INTERESTS 


[Ch.  XIII 


tially  a  reversionary  interest,"'' — a  returning  of  the  land  to  the 
lord  of  whom  it  was  held,  because  the  tenant's  estate  had  de- 
termined. ' ' 

§  284.  The  interest  of  the  dedicator  upon  a  statutory  dedica- 
tion— What  sort  is  it — On  principle:  Upon  a  statutory  dedica- 
tion the  fee  simple  estate  in  the  land  dedicated  passes  to  the 
municipality.*^"  It  is  admitted  on  all  hands,  however,  that 
should  the  dedication  be  vacated  there  is  some  right  in  the  orig- 
inal dedicator  to  recover  back  the  lands  dedicated/'"  Is  this 
right  a  possibility  of  reverter  or  a  right  to  enter  for  breach  of  a 
condition  subsequent  ? 

In  the  ordinary  case  there  is  no  explicitly  expressed  intention 
of  the  dedicator'"''  upon  which  to  found  a  solution  of  this 
question.  Nor  do  the  terms  of  the  statute  throw  any  light  upon 
the  matter.  If,  therefore,  the  right  arises  by  an  expressed  intent 
of  the  dedicator  such  intent  must  be  expressed  by  iinplication 
from  the  act  of  dedication.  If  it  arises  by  operation  of  the 
statute  in  regard  to  dedication  it  must  be  upon  the  construction 
of  that  statute  as  a  whole — not  because  of  any  particular  words 
in  it.  Whichever  way  you  take  it  a  court  would  seem  to  be 
pretty  free  to  choose  what  sort  of  interest  the  dedicator  shall  be 


63  The  question,  therefore,  of  the       Webster,  85  111.  116,  118   (semble) ; 


validity  of  such  interests  in  Illi- 
nois is  considered  in  connection  with 
reversions,  post,    §§  300-302. 

*">«  Canal  Trustees  v.  Havens,  11 
111.  .554;  Hunter  v.  Middleton,  13 
111.  50;  St.  John  i;.  Quitzow,  72  111. 
334,  336;  Gebhardt  v.  Eeeves,  75 
111.  301,  304  (citing  other  cases)  ; 
Matthiesson  &  H.  Zinc  Co.  v.  La- 
Salle,  117  111.  411,  414-417,  16  111. 
App.  69,  (citing  other  Illinois 
cases). 

Of  course  until  the  vacation  does 
occur  there  is  no  right  of  posses- 
sion in  the  dedicator  or  in  any  one 
else:  Matthiesson  &  H.  Zinc  Co.  v. 
LaSalle,  117  111.  411,  418. 

(••7  Hunter  v.  Middleton  ;  13  111.  50, 
54  (semble)  ;  St.  John  v.  Quitzow, 
72  111.  334,  336;  Gebhardt  v. 
Reeves,   75  HI.    301,   306;    Helm   v. 


Village  of  Hyde  Park  r.  Borden,  94 
111.  26,  34;  Matthiesson  &  H.  Zinc 
Co.  -;;.  City  of  LaSalle,  117  111.  411, 
418    {semble). 

68  In  Helm  v.  Webster,  85  111.  116, 
the  intent  of  the  dedicator  was 
fully  expressed  in  the  following 
language :  "  It  is  hereby  provided 
and  understood  that,  when  said 
premises  shall,  after  being  opened 
as  a  street,  cease  to  be  used  as 
such  or  whenever  such  street  as  may 
be  opened  on  said  premises  shall 
be  abandoned  or  vacated  by  said 
city,  the  same  shall  revert  to  the 
present  owners  thereof,  their  heirs 
or  assigns,  the  same  as  though  this 
deed  had  never  been  made."  This 
looks  like  a  condition  subsequent 
upon  the  breach  of  which  the  dedica- 
tor would  have  a  right  of  entry. 


294 


Ch.  XIII]  CONDITIONAL   ESTATES  f§285 

held  to  possess.  Possibilities  of  reverter,  Jiowever,  as  will  here- 
after be  indicated,'"*  are  of  very  doubtful  validitj-^  since  the 
statute  of  quia  emptores.  On  the  other  hand  there  is  no  doubt 
that  a  rigfht  of  entry  for  condition  broken  may  be  attached  to  a 
fee  simple.''"  It  would  seem,  therefore,  more  in  accordance  with 
the  general  symmetry  of  the  law  to  regard  the  dedicator's  in- 
terest as  a  right  of  entry  for  the  breach  of  a  condition  subsequent. 

§285.  On  authority:  .\o  case  in  our  Supreme  Court  has 
actually  involved  the  question  of  the  nature  of  the  dedicator's 
interest.  The  expressions  concerning  it,  so  far  as  they  go,  have 
been  conflicting,''  and  it  may  well  be  doubted  whetiier  our  court 
was,  in  any  case,  really  undertaking  to  pass  upon  the  point. 
Nor  call  the  nature  of  the  dedicator's  interest  be  determined  by 
iiKjuii'ing  whetiier,  in  case  of  vacation,  an  entry  was  made  by 
him  before  bringing  ejectment,  since  ejectment  may  be  main- 
tained without  entry ."2  It  is  believed,  however,  that  the  nature 
of  the  dedicator's  interest  must  be  involved  where  the  ({uestion 
arises  as  to  the  alienability  of  his  interest  after  the  dedication  has 
been  vacated  and  before  any  entry  or  the  equivalent  of  entry  by 
him  or  his  heirs.  In  such  a  state  of  facts,  if  the  right  of  the 
dedicator  were  a  possibility  of  reverter,  then  the  fee  would  have 
expired  by  the  terms  of  its  original  limitation  and  the  dedicator, 
if  he  be  living,  or  liis  heirs  if  he  be  dead,  could  convey  without 
entry."-'  If,  on  the  other  hand,  the  right  of  the  dedicator  was 
to  enter  for  condition  broken,  neither  he  nor  his  heirs  could 
convey  until  the  forfeiture  had  been  perfected  by  entry  or  some 
equivalent  act."-* 

It  is  worth  observing  somewhat  in  detail  that  the  point  was 
raised   in  just  this  way  in  Ruck  v.  Rock   Island.''^^     There   it 

•iii  Post,  §§  .300-302.  original  dedicator]    does  not  have  a 
'*>  Ante,  §216.  reversion,    but    a    possibility    of    re- 
Ti  In  St.  John  v.  Quitzow,  72  111.  verier  only."     In   this  latter  case, 
334,  3.'i6,  the  Court  says:    "  The  new  however,   the  court  was   contrasting 
streets   were   dedicated   upon   condi-  a    reversion    with    a    possibility    of 
tion  the   fee   in   the  streets  and   al-  reverter  and  not  a  possibility  of  re- 
leys    vacated   should    vest    in   appol-  verter  with  a  right  of  entry  for  the 
lant   I  the  original  dedicator  |.  "     On  l)reach  of  a  condition  subsoiiuent. 
the  other  hand  in  Matthiesson  &  H.  '-Ante,  §244. 
Zinc  Co.  r.  City  of  LaSalle,  117  111.  '-^  Post,  §§300-302. 
411,  418,  Scholfield,  J.  saps:    **The  '*  Ante,   ^244. 
adjacent  lot  owner  [referring  to  the  "•'■'  97   U.   S.   69.5. 

295 


§  286]  FUTURE   INTERESTS  [ClI.  XIII 

seems  to  liave  been  assumed  that  tlie  fee  vested  in  the  town  by 
dedication  for  schools  and  churches.     Subsequently  to  the  con- 
veyance by  the  town  for  other  i)uri)Oses  the  heirs  of  the  original 
dedicator,  without  having  entered  or  done  any  act  sufficient  to 
perfect  a  forfeiture  for  the  breach  of  a  condition  subsequent 
(if  any),  conveyed  to  the  plaintiffs  who  brought  ejectment.    A 
judgment  for  the  defendants  was  affirmed.     The  court,  speaking 
by  Mr.  Justice  Swayne,  pointed  out  that  the  heirs  at  law  had 
conveyed  before  doing  any  act  to  forfeit  the  estate  for  breach 
of  a  condition  subsequent  and  that  this  was  quite  conclusive 
against  the  plaintiff's  recover^'.     The  following  language  was 
used:     "It  was  not  denied  by  the  plaintiff'  that  the  title  had 
passed,  and  that  the  estate  had  vested  by  the  dedication.    If  the 
conditions  subsequent  were   broken,'*^  that  did  not  ipso  facto 
produce  a  reverter  of  the  title.     The  estate  continued  in  full 
force  until  the  proper  step  was  taken  to  consummate  the  for- 
feiture.   This  could  be  done  only  by  the  grantor  during  his  life- 
time, and  after  his  death  by  those  in  privity  of  blood  with  him. 
In  the  meantime,  only  a  right  of  action  subsisted,  and  that  could 
not  be  conveyed  so  as  to  vest  the  right  to  sue  in  a  stranger. 
Conceding  the  facts  to  have  been  as  claimed  by  the  plaintiff 
in  error  [the  plaintiff  in  the  ejectment],  this  was  fatal  to  his 
right  to  recover,  and  the  jury  should  have  been  so  instructed," 
§  286.    How  does  it  arise?     Does  it  arise  by  act  of  the 
parties  or  by  statute,  or  merely  b}^  operation  of  law  apart  from 
the  statute?     It  is  believed  that  it  must  arise  by  virtue  of  the 
statute  on  dedication.     If  it  does  not,  then  if  it  be  a  possibility 
of  reverter  it  arises  by  operation  of  law  apart  from  the  statute. 
But  it  must  be  very  doubtful  whether  such  an  interest  can  prop- 
erly so  arise  since  quia  emptores,'''  and,  if  it  can,  it  should  be 
objectionable  on  the  ground  of  remoteness."'^    If  it  is  a  right  of 
entry   for  condition  broken,   it  may  be  valid   apart   from  the 
question  of  remoteness,"**  especially  if  created  by  the  statute. 
In  either  case,  where  is  the  expressed  intent  of  the  dedicator 

76  There    do   not    appear   to   have  77  post,  §§  300-302. 

been    any   express    condition    subse-  78  Gray 's   Rule   against   Perpetui- 

quent.      Whatever    condition    there  ties,  §312;  but  see  post,  §662. 

was  arose  out  of  the  fact  of  a  dedi-  79  But  see  post,  §  662. 
cation     for     schools    and     churches. 
See  p.  695  of  the  report. 

296 


ClI.  XllI]  CONDITIONAL   ESTATES  I  §  287 

that  the  fee  shall  continue  only  until  the  dedication  is  va;'ated, 
or  that  the  dedicator  shall  have  a  right  to  re-enter  when  such 
vacation  occurs?  These  considerations  indicate  tiiat  the  interest 
of  the  dedif-ator  arises  by  force  of  the  dedication  statute  alone. 

!<  287.     Rights  of  abutting  owners  upon  vacation  of  a  statu- 
tory dedication — In  the  absence  of  statute:     It   is  apparent 
from  the  preceding  sections  that,  in  the  alxsence  of  statute,  the 
abutting  owner  has  no  right  upon  the  vacation  of  a  statutory 
dedication.     The  only  possible  ground  upon  which  the  abutting 
owner   might    have    claimed   anything   was   this:      Where    land 
abutting  on  a  highway,  the  fee  of  which  is  in  the  owner  of  the 
abuttiiig  property,  is  conveyed,  without  expressly  excluding  the 
highway,  tlie  fee  to  the  center  of  the  way  is  held,  by  the  proper 
construction  of  the  deed  to  be  transferred.^"     In  the  same  way, 
where  the  dedication  i)asses  the  fee  of  the  way  with  a  right  in 
the  dedicator  to  retake  possession  in  case  of  vacation,  the  deed 
of  the  dedicator  covering  the  abutting  property  ought,  unless  it 
in  terms  exclude  all  interest  in  the  way,  to  be  construed  as  ex- 
pressing an  intent  to  tran.sfer  such  right  to  one-half  the  .street. 
On  this  reasoning  the  dedicator's  right  to  retake  the  fee  on 
vacation  of  the  dedication  will  vest  in  the  grantee.    In  St.  John 
V.  Quitzow^'^  this  view  seems  to  have  failed  for  no  other  reason 
than  that  the   dedicator,  when   she   conveyed   to   the   abutting 
owners,  expressly  reserved  in  the  deed  the  right  to  vacate  the 
stVeets. 

The  difficulty  with  such  a  position  is  that  it  might  be  held, 
in  the  absence  of  statute,  that  the  right  of  the  original  dedicator, 
whether  it  l)e  a  jiossibility  of  reverter  or  a  right  of  entry  for 
condition  broken,  cannot  lie  transferred  by  deed.^-  Perhaps 
this  difficulty  was  really  in  the  mind  of  the  court  in  Gehhardt  v. 
Reeves.^-''     There  it  was  clearly  intimated  that  where  upon  a 

80  Post,  §  292 ;  Hamilton  i'.  Chi-  whatever  in  the  land  embraced 
cago,  B.  &  Q.  K.  R.  Co.,  124  111.  2.?.";  within  them,  —  absolutely  nothing, 
Henderson  v.  Hatterman,  146  Til.  within  any  definition  of  estate  or 
555,  564.  property,    that    he    could    sell    and 

81  72  111.  334,  336.  convey.  It  had  all  passed  to  the 
fi^  Ante,  §240;  post,  §300.  corporation  by  the  former  grant, 
S3  7;")  111.  301,  306-307:  "T^iitil  the       subject    only    to    the    possibility    it 

municipality  shall  elect  to  abandon  might  revert  to  him,  if  the  con- 
the  use  of  the  streets  and  alleys,  tingency  ever  happened  [that!  the 
the    former   owner    has    no    interest       municipality    should    ever    abandon 

297 


§  288]  FUTURE   INTERESTS  [Ch.  XIII 

statutory  dedication,  the  fee  liad  passed,  the  conveyance  of  the 
abutting  property  could  not  carry  the  right  of  the  dedicator  to 
any  part  of  the  land  dedicated.  It  is  worth  observing,  however, 
that  in  Helm  v.  Webster  ^^  one  of  the  very  cases  in  which  the 
abutting  owner  was  defending  his  possession  in  a  street  that  had 
been  vacated  after  a  statutory  dedication,  the  plaintiff  was  the 
grantee  of  the  original  dedicator  in  a  deed  executed  before  the 
vacation  occurred.  In  affirming  a  judgment  for  the  plaintiff 
the  court  must  have  sustained  the  transferability  by  deed  of 
the  right  of  the  original  dedicator  to  the  plaintiff.  Why,  then, 
did  not  the  same  right  pass  by  the  deed  of  the  plaintiff  to  the 
abutting  owners  who  purchased  lots  from  him  ? 

§288.  The  acts  of  1851,8'>  i865,so  and  1874:^7  The  act  of 
1851  was  the  first  legislation  in  this  state  in  favor  of  the  abutting 
owner.  It  seems  to  have  been  restricted  in  its  application  to 
vacations  by  "Cities"  only.  It  provided:  "That  when  the 
corporate  authorities  of  any  city  may  deem  it  for  the  best  in- 
terest of  their  respective  cities,  that  any  street  or  part  of  a 
street  shall  be  changed,  altered  or  vacated,  said  authorities  shall 
have  the  power,  upon  the  petition  of  the  property  holders  own- 
ing property  on  such  street  or  part  of  street  to  change,  alter,  or 
vacate  the  same,  and  to  convey,  by  quit  claim  deed,  all  interest 
which  said  city  may  have  had  in  the  street  or  part  of  street  so 
vacated,  to  the  owner  or  owners  of  lots  and  lands  next  to  and 
ad.ioining  the  same,  upon  the  payment  by  such  owner  or  owners 
of  all  assessments  which  may  be  made  against  their  lots  or  lands, 
for  and  on  account  of  benefits  to  the  same,  arising  from  such 
change,  alteration  or  vacation  of  an,y  street  or  part  of  street  as 
aforesaid." 

The  act  of  1865  seems  to  have  had  reference  only  to  cases 
where  the  vacation  was  by  "act  or  acts  of  this  state,"  and  was 
therefore,  in  no  way  inconsistent  with  the  act  of  1851.  It  pro- 
vided in  part  as  follows:    "That  when  any  street,  square,  lane, 

the  trust.     Logic-ally   it   follows,   by  1851,  p.   112;    1    A.  &   D.   R.   E.   S. 

the   grant   of  the   adjacent   lot,   the  1044.  Repealed  July  1,  1874,  by  R. 

grantee  takes  no  interest  under  his  S.  1874,  p.  1018,   §  156. 
deed    in    the    street   or    alley,    other  s"  Approved  Feb.  16th,  1865.  Laws 

than    he    acquires    in    common    with  1865,  p.   1.30;    1    A.  &  D.  R.   E.   S. 

the  public."  p.  1045.     Repealed  July  1,  1874,  by 

«-i85  111.  116.  R.  S.  1874,  p.  1033,  §550. 

S5  Approved    Feb.    15,    1851.      L.  «-  r.  s.  1874,  chap.  145,  p.  1092. 

298 


Ch.  JCIII]  CONDITIONAL    ESTATES  [§289 

alley,  highway  or  part  tiiereof,  shall  have  been  or  may  hereafter 
be  vacated,  under  or  by  virtue  of  any  act  or  acts  of  this  state, 
the  lot  or  tract  immediately  adjoining  shall  extend  to  the  central 
line  of  any  such  street,  s(|uare,  lane,  alley,  highway,  or  part 
thereof,  so  vacated,  unless  otherwise  specially  i)rovidcd  in  the 
act  vacating  the  same:     *     *     *" 

The  act  of  1874  took  ctT'cct  upon  the  repeal  of  the  two  pre- 
ceding acts.  This  statute  was  a  consolidation  of  the  two  preced- 
ing acts  in  that  it  was  iiuide  to  apply  to  vacations  by  any 
municipality  or  the  state.  In  other  respects  it  followed  with 
some  additions,  the  act  of  1865.  It  provided  in  part  as  follows 
(the  italics  showing  the  additions  made  to  the  act  of  1865)  : 
"When  any  street  I"s(|uare"  omitted],  alley,  lane  or  highway, 
or  any  part  thereof,  has  been  or  shall  be  vacated  under  or  by 
virtue  of  any  act  of  this  state  or  by  order  of  the  citij  council  of 
am)  city  or  trustees  of  any  village  or  town,  or  by  the  commis- 
sioners of  highways,  county  board,  or  other  authority  authorized 
to  vacate  the  same,  the  lot  or  tract  of  land  immediately  adjoining 
on  cither  side  shall  extend  to  the  central  line  of  such  street 
["square"  omitted],  alley,  lane  or  highway,  or  part  thereof  so 
vacated,  unless  otherwise  j>rovided  in  the  act,  ordinance  or  order 
vacating  the  same,  unless  in  consequence  of  more  of  the  land  for 
such  street,  alley,  lane  or  highway  haviiig  been  contributed  from 
ths  land  on  one  side  thereof  than  the  other,  such  division  is 
inequitable,  in  which  case  the  street,  alley,  lane  or  highway  so 
vacated,  shall  be  divided  according  to  the  equities  of  the  adjoining 
owners. ' ' 

§  289.  Effect  and  constitutionality  of  these  acts — The  wider 
and  narrower  meaning  of  these  acts:  Taken  in  their  wider 
meaning  these  statutes  have  reference  to  dedications  by  any 
owner  of  land.  In  its  narrower  meaning  the  act  of  1851  must 
be  interpreted  as  applying  only  when  upon  the  vacation  of  a 
dedication,  an  incorporated  city  becomes  invested  with  a  fee 
which  it  could  hold  as  private  property.  Practically  that  nar- 
rows its  oi)eratiou  to  the  case  where  the  city  dedicates  its  own 
private  property.  In  such  case  the  statute  gives  the  city  the 
power  to  convey  to  the  abutting  owners — a  privilege,  which,  so 
far  as  the  cases  go,  the  municipality  seems  never  to  have  exer- 
cised.'*'^    In  their  nan-ower  ineaiiing  the  acts  of  1865  and  1874 

s'*  Presuniahly    tlic    stntnto    aiith-       orizes    the    city    to    convey    to    the 

299 


§  290]  FUTURE   INTERESTS  [Ch.  XIII 

would  apply,  whenever,  upon  the  vacation  of  the  dedication,  the 
fee,  or  the  right  thereto,  came  to  the  hands  either  of  the  state  or 
any  municipal  corporation  or  organization  as  distinguished  from 
a  private  person  or  corporation. 

§  290.  These  acts  only  operative  in  their  narrower  meaning, 
because  in  their  wider  meaning  they  would  be  unconstitu- 
tional and  unjust:  The  only  two  cases  upon  the  point  seem 
to  commit  our  Supreme  Court  to  the  narrower  meaning  of  these 
statutes — not,  however,  upon  the  actual  language  of  the  acts, 
which  will  certainly  bear  the  broader  interpretation,  but  because 
the  statutes,  if  they  have  the  broader  meaning,  would  be  un- 
constitutional. 

The  first  of  these  cases  was  Gebharcit  v.  Reeves.^^  There  the 
dedication  ^'^  and  vacation  were  both  under  the  act  of  1851,  and 
it  seems  to  have  been  squarely  held  that  the  statute  was  not 
effective  to  prevent  the  original  dedicator  from  maintaining 
ejectment  upon  his  legal  title  in  fee.  Our  Supreme  Court  de- 
clared shortly  that,  by  the  proper  interpretation  of  the  statute, 
"it  simply  authorizes  the  city  to  release  whatever  interest  in  the 
street  it  could  lawfully  convey."  This  is  the  primary  ground 
for  the  decision,  but  observe  that,  in  the  mind  of  the  court,  the 
only  reason  for  adopting  this  narrow  construction  of  the  statute 
was  that  any  interpretation  of  the  act  which  caused  it  to  apply 
where  the  dedication  was  by  an  individual  would  have  made  it 
unconstitutional  as  depriving  the  original  dedicator  of  his  prop- 
erty without  due  process  of  law.  The  court  says,  without,  it 
would  seem,  much  elaboration  upon  so  important  a  point:  "The 
fee  plaintiff  had  in  the  street  and  alley  could  not  be  divested 
and  transferred  to  the  adjacent  lot  owners  by  direct  legislative 
action ;  nor  could  authority  be  given  to  any  agency  to  do  it  for 
private  purposes.  An  intention  to  take  the  property  of  one  man 
and  transfer  to  another,  without  compensation,  ought  not  to  be 
attributed  to  the  legislature,  where  a  different  motive  may  be 

abutting    owners    without    the    pay-  fledieation   occurred,  but  the   writer 

ment  by  them  of  any  consideration;  is  informed  by  James  Murray  Esq., 

for,  if  they  gave  the  city  value,  no  that   from    the   tract   books    of   the 

statute    would    seem    to    have    been  Chicago  Title  and  Trust  Co.  it  ap- 

necessary.  pears    that    the    plat   was   acknowl- 

89  75  111.  301.  edged  June  13th,  1856  and  recorded 

80  It  does  not  clearly  appear  from  al)Out  the  same  date. 
the   report    of    the   case    when    the 

300 


Ch.  XII1|  CONDITIONAL    ESTATES  [§201 

assij^'iiod  Tor  its  act  ion.  A  law  that  would  liavf  Ihat  cfVcct,  oi- 
that  would  authorize  it  to  ho  done,  would  he  palpahly  in  violation 
of  the  constitution,  as  well  as  unjust.'"" 

Ilrh)i  r.  Wchsfrr'-'-  seems  to  have  applied  the  same  doctrine  to 
the  act  of  1874.-''  The  dedication,  in  that  case,  was  in  1855,  and 
the  vacation  occurred  by  the  ordinance  of  an  incorporated  city 
in  1876.  At  that  time  the  act  of  1851,  under  which  the  dedica- 
tion was  made,  was  no  longer  in  force,  so  that  the  a))utting  owner 
could  not  claim  under  it.  Whether  the  act  of  1874  could  be 
given  a  retroactive  effect  so  as  to  control  the  vacation  when  the 
dedication  had  been  made  under  the  act  of  1851,  would  depend 
upon  whetiier  or  not  the  act  of  1874  was,  in  substance,  merely 
a  re-enactment  of  the  act  of  1851.  The  court  seems  to  have  indi- 
cated that  il  was.  They  then  went  on  to  hold  that  any  other 
than  the  narrower  meaning  of  these  statutes  was  impossible 
because  in  their  wider  meaning  the  acts  would  be  unconstitu- 
tional. "The  fee,"  the  court  says,  "plaintiff  had  in  the  street 
and  alley  could  not  be  divested  and  transferred  to  the  adjacent 
owners  by  direct  legislative  action.  An  intention  to  take  the 
propei-ty  of  one,  and  transfer  it  to  another,  w'ithout  compensa- 
tion, ought  not  to  be  attributed  to  the  legislature,  and  a  law  that 
would  have  that  effect,  would  be  in  violation  of  the  constitution, 
as  well  as  unjust." 

^  291.  Are  these  acts  in  their  wider  meaning-  unconstitu- 
tional or  unjust? — A  difficulty  about  opening  this  question: 
There  is  a  difficulty  about  opening  this  question  in  regard  to 
the  statutes  which  have  already  been  passed.  Our  Supreme 
Court  has  not,  as  has  been  observed,  held  them  void  as  uncon- 
stitutional, but  has  merely  given  them  a  narrow  meaning,  be- 
cause, with  the  wider  one,  they  would  have  been  void.  As  they 
stand,   then,   these   acts  have   an   effect.     Our   Supreme   Court 

!"  T^pon  this  point  Justices  Shcl-  act  of  the  state,  and  the  vacation 

don  and  McAllister  appear  to   have  here    was    by    ordinance    of   a    city, 

dissented.  The   act    of    187-1,   however,   applied 

!•- 85  111.  116.  both  where  the  vacation  was  by  act 

9'5  In  the  opinion  of  the  court  the  of  the  state  or  by  a  city  ordinance. 

Act  of   186;")   is   particularly   spoken  l7i    other    respects    it    was    niodeleil 

of.    Of  all  three  acts,  however,  that  after  the  Act  of   1865.     Doubtless, 

is  the  one  which  could  not  possibly  therefore,   the   court,   in   nieutioninj^ 

have  been  applied  since  it  only  op-  the  Act  of  1865,  was  really  referring; 

erated    whore    the   vacation    was    by  to  the  act  of  1874. 

301 


§  292]  FUTURE   INTERESTS  [Ch.  XIII 

might,  therefore,  say  that,  if  the  legislature  re-enaeted  a  new 
law  to  operate  prospectively  and  in  terms  applying  to  a  dedica- 
tion by  anybody,  it  would  reconsider  its  constitutionality 
unprejudiced  by  its  former  rulings  upon  the  ground  that  a  deci- 
sion as  to  the  validity  of  an  act  of  the  legislature,  made  in  a 
merely  private  controversy,  should  not  preclude  the  reconsidera- 
tion of  the  same  question  at  a  future  time  in  a  suit  by  other 
parties.^^  However,  as  to  the  statutes  already  enacted,  their 
effect  has  been  fixed  by  decisions  twenty-five  years  old  and,  up 
to  the  present  time,  unimpeached.  The  reasoning  upon  which 
these  cases  went  may  be  erroneous  and  may  not  be  followed,  but 
the  actual  decision  has  possibly  become  a  rule  of  property  which 
may  have  been  relied  upon  and  it  might  unsettle  titles  now  to 
disturb  it.  The  question,  then,  of  the  constitutionality  and 
justice  of  these  acts  will  be  considered  as  if  it  referred  to  new 
legislation  in  form  like  the  acts  of  1851,  1865  and  1874  and 
clearly  applying  to  a  dedication  made  by  anybody  at  all. 

^5  292.  Such  acts  are  neither  unjust  to  the  dedicator  nor 
contrary  to  public  policy:  It  is  to  be  observed  that  while  the 
fact  that  a  statute  in  one  construction  operates  unjustly  is  no 
ground  for  its  being  held  unconstitutional,  it  is  a  reason  for  its 
being  so  construed  as  not  to  operate  harshly.  But  do  these  acts 
in  favor  of  the  abutting  owner  in  their  wider  meaning  operate 
unjustly?  Where  is  the  injustice  in  saying  to  the  dedicator: 
You  need  not  dedicate  at  all.  Even  if  you  want  to  dedicate  you 
need  not  do  so  under  the  statute  so  that  the  fee  will  pass  to  the 
municipality;  but  if  you  do  you  must  part  with  all  rights  to 
this  land  so  that  when  the  dedication  is  vacated  the  fee  will 
remain  in  the  city  with  power  to  convey,  or  go  to  the  abutting 
owners  direct.  This  does  not  deprive  the  dedicator  of  any  right 
that  he  has.     It  does  not  substantially  deprive  him  of  all  right 

9-t  In    Allardt    i;.   People,   197    111.  cept  in  so  far  as  it  is  founded  upon 

501,   509,   the  propriety   of  the   de-  sound  reasoning  and  authority,  and 

f'ision  in  Burdick  v.  People,  149  111.  will    then    be    re-affirmed    or    over- 

600,    holding   a    certain   act    of   the  ruled,    as    shall    appear    right    and 

legislature     valid,     was     questioned.  proper. ' '     See   also   ' '  The  Doetrine 

The   f'ourt    said:    "If   the   constitu-  of  Stare   Decisis  as  applied  to  De- 

tionality   of    that   act    should   again  cisions  of  Constitutional  Questions, ' ' 

be  presented   by  parties  not  before  by  D.  H.  Chamberlain,  ?,  Harv,  Law 

the  court  in  the  Burdifk  case,  that  Eev,  125. 
decision  will  not  preclude  them,  ex- 

302 


Cri.  XIII]  CONDITIONAL    KSTATES  f  §  292 

to  dedicate  l)y  iinposiiijr  an  oppressive  ('oiiditioii.  Practically, 
it  does  not  even  discourage  dedication,  for  if  the  dedicator  ever 
considered  the  possibility  that  tiie  fee  would  come  back  to  him 
(which  is  extremely  unlikely)  he  would  simply  have  added  some- 
thing' to  the  price  of  tlie  lots  if  it  did  not  do  so.  Such  a  statute 
merely  places  by  act  of  the  legislature  a  condition  upon  the  dedi- 
cator's doing  that  which,  in  the  absence  of  the  general  statute 
on  dedication,  he  could  not  possibly  do.  P>om  the  point  of  view 
of  the  dedicator,  what  injustice  or  harshness  is  tJiere  in  this? 

Not  only  are  these  acts  not  unjust  to  the  dedicator  but,  it  is 
submitted,  they  are  dictated  by  a  sound  public  policy.  The 
legislature  has  simply  attempted  to  etf'ect  the  same  result  which 
the  courts  reached  in  the  case  of  a  common  law  dedication  where 
the  fee  did  not  pass. 

It  has  become  a  universally  accepted  rule  of  construction  for 
conveyances  that  an  instrument  transferring  the  title  to  lands 
bordering  upon  a  highway,  the  fee  of  which  to  the  center  is  in 
the  transferor,  will  pass  the  fee  to  the  center  of  the  way  unless 
a  very  clear  intention  be  indicated  to  leave  the  strips  of  land  in 
the  highwa.y  unconveyed.  Our  Supreme  Court  in  one  ease  has 
gone  so  far  as  to  hold  that  even  where  there  was  no  dedication 
at  all  the  conveyance  of  lots  in  a  subdivision  by  number  will  pass 
a  title  to  the  center  of  strips  of  land  indicated  as  intended 
streets.'''^  In  another  case  it  has  held  that  "although  the  meas- 
urement set  forth  in  the  deed  brings  the  line  only  to  the  side 
of  the  highway,  the  title  will  still  be  carried  to  the  center  of  it, 
unless  such  words  are  used  and  such  meets  and  bounds  are  set 
forth  as  show  a  contrary  intention."""  In  support  of  this 
position  the  two  Pennsylvania  cases  of  Paul  v.  Carver p'  and 
Cox  V.  Frefdlcy,'-'^  are  cited.  In  both,  the  deeds  in  direct  lan- 
guage bounded  along  ''the  northerly  side  of  the"  street.  In 
the  latter  case  the  measurements  of  the  lot  were  also  given  and 
if  followed,  would  have  fixed  the  boundary  at  the  side  of  the 
way  in   question.     Yet  in  both   cases  the  deed  carried  to  the 

"•''  Hamilton  v.  Chipatjo  B.  &  Q.  TJ.  the   streets    passed    to    the    grantees 

R.  Co.,  124  111.  2115;  Village  of  Ver-  of     the      original     dedicator,     even 

niont  V.  Miller,  161  111.  210.  though  the  conveyance  to  them  was 

f">  Henderson    v.    Hatternian.    Mfi  made  "reserving  .streets  and  alleys, 

111.    o.'.l,    r)64.      See    also    Gould    r.  according  to  the  recorded  plat. ' ' 

Howe,    l.n    111.   490,   where   upon    a  ""  26  Pa.  223. 

common    law   dedication,   the   foe    to  "s  33  Pa.    124. 

303 


§  292]  FUTURE   INTERESTS  [Ch.  XIII 

ceuter  of  the  way.  Our  Supreme  Court  may  or  may  not  go  so 
far,  but  it  has  gone  far  enough  clearly  to  afftrm  the  general  rule 
of  law  of  construction  that  the  deed  will  carry  to  the  middle  of 
the  way  unless  there  be  some  clear  expression  to  the  contrary. 

Such  a  rule  of  law  rests,  as  the  courts  have  frankly  declared, 
upon  a  public  i)oliey  which  seeks  to  prevent  profitless  litigation 
and  future  difficulties  and  inconvenience  by  avoiding  the  exist- 
ence of  outstanding  titles  to  small  strips  of  land  in  numberless 
and  untraceable  heirs.  "No  doubt  the  rule,"  said  ^Ir.  Justice 
Scott  in  Gehhardt  v.  Reeves,^^  "in  its  practical  operations,  sub- 
serves the  public  good  by  preventing  the  existence  of  strips  of 
land  of  no  great  value  formerly  a  part  of  the  highway,  but  on 
the  abandonment  of  which  would  induce  profitless  and  vexatious 
litigation."  ^ 

The  beneficent  results,  thus  carefully  worked  out  by  the  courts 
in  the  absence  of  legislation,  were  rudely  broken  into  wlien  it 
came  to  be  held  that  a  statutory  dedication  passed  the  fee  to  the 
municipality,  leaving  only  a  right  of  reverter  or  of  entry  on 
condition  broken  2  in  the  dedicator.  Since  the  dedicator  had 
parted  with  the  fee  and  since  his  interest,  whatever  it  might  be, 
was  probably  not  transferable  by  deed  ^  there  was  no  way  in 
which  the  remnant  of  title  left  in  the  dedicator  could  pass  upon 
the  conveyance  of  lots  abutting  on  the  street.  The  general  as- 
sembly, therefore,  stepped  in  to  correct  this  by  such  legislation 
as  has  been  above  set  out."*  The  public  policy  which  actuated 
it  was  exactly  the  same  as  that  which  had  inspired  the  courts 
for  a  long  time  previous.  The  legislature  was  in  fact  endeavor- 
ing to  prevent  the  interruption  of  the  very  salutary  rule  of  the 
court  with  which  its  dedication  acts  had  tended  to  interfere.  In 
this  view  the  holding  that  such  legislation  was  unconstitutional 
and  unjust  becomes  almost  grotesque. 

Some  have  thought  that  our  Supreme  Court,  by  requiring  so 
technical  and  literal  a  compliance  with  the  letter  of  the  dedica- 
tion statute  that  many  dedications,  especially  many  of  those 
made  before  1874,-'^  must  fail  as  statutory  dedications,  has  sub- 

90  75  111.  301.  '»  Ante,  §  288. 

1  See  also  Paul  v.  Carver,  26  Pa.  ^  The  Act  of   1833    (Laws,   1833, 

223.  p.  599;  1  A.  &  D.  R.  E.  S.  p.  1039) 

^  Ante,  §§284-286.  seems  to  have  governed  dedications 

3  Ante,  §§  240,  300.  between  1833  and  1874,  except  when 

304 


Ch.  XIU]  COXDITK )X A L    ESTATES  [§292 

stantially  conceded  that  the  result  of  Gebhardt  v.  Recces'-  was 
unfortunate. 

The  effect  of  finduiy-  only  a  common  law  dedication  certainly 
is  that  tlie  fee  of  the  streets  remains  in  the  original  dedicator 
and  passes  by  the  conveyance  of  the  lots  to  the  abutting  owners  J 
Thus,  tlie  desirable  result  is  attained.  It  is  true,  also,  that 
<iebh(ir(ll  v.  lircvr.s  took  the  view  that  "substantial  compliance 
with  tlu'  provisions  of  the  statute"  was  all  that  the  law  re- 
quires— the  case  actually  holding  (1)  that  a  plat  not  made 
and  certified  by  the  county  surveyor  according  to  the  act  of 
1833  but  by  another  surveyor,  was  valid,^  and  (2)  that  the 
absence  of  a  corner  stone  did  not  invalidate  it  where  there  were 
other  monuments.  It  cannot  be  denied  that  later  cases  have 
consistently  held  that  the  same  statute  must  be  very  literally 
complied  with  in  order  to  make  a  statutory  dedication.  First, 
it  was  held  that  the  acknowledgment  of  the  dedicator  by  his 
attorney  in  fact  was  not  a  compliance  with  the  act  of  1833,» 
because  that  statute  read  that  "every  person  or  persons  whose 
duty  it  may  be  to  comply  with  the  foregoing  requisitions,  shall, 
at  or  before  the  time  of  offering  such  plat  or  map  for  record, 
acknowledge  the  same,"  etc.i«  rpj^^j-^  GehJiardt  v.  Reeves  was 
in  terms  overruled  so  far  as  it  held  that  the  plat  need  not  be 

such  dedications  were  by  special  act  win,  128  111.  57,  63,  were,  therefore, 

of  the  legislature.     (See  pos*   §298,  only    justified    in    saying    that    the 

note  as  to  Canal  Trustees  subdivis  holding    that    one,    other    than    the 

ions).     The  act  of   1833  was  incor-  County    surveyor,    might    make    the 

porated  into  K.  S.  1845,  ch.  25,  div.  plat,  was  unnecessary  to  the  decision. 

1,  sees.  17  et  seq.    This  was  repealed  "  Gosselin  v.  City  of  Chicago,  103 

by  R.  S.  1874,  ch.  131,  sec.  5,  §  8.  111.  623;  Thomsen  v.  McComiick,  136 

6  75   111.   301.  111.   135;    Earll   v.   City   of   Chicago, 

7  Supra,  notes  95-98.  136  111.  277;  Blair  v.  Carr,  162  111. 

8  The  Court  also  said  on  this  362;  City  of  Alton  i;.  Fishback,  181 
point  that  it  might  be  presumed,  111.  396;  Thompson  v.  Maloney,  199 
after  the  destruction  of  all  written  111.  276;  Rus.sell  r.  City  of  Lincoln, 
evidence  of  his  oflicial  capacity,  that  200  111.  511. 

the  plat   was  made   by  the   County  Observe  that  this  was  changed  by 

surveyor  in  fact.     There  were,  tliere-  R.  S.  1874,  chap.  109,  see.  2;  Kurd's 

fore,   two   grounds   for   the   decision  R.  S.  (1903)  chap.  109,  sec.  2. 

that  the  plat  was  made  by.  the  pro[ier  i^Laws   1833,   p.  599,   sec.   4,    (1 

person.     Each  ground  is  part  of  the  A.  &   D.  R.   E.   S.   p.   1039)  ;    R.   S. 

actual  decision  of  the  case.     (Wani-  1S45,  ch.   25,  div.  1,  sec.  20.   (A.  & 

baugh.  Study  of  Cases,  §26).     The  T>.  R.  E.  S.  p.  1041).     Repealed  R. 

court  in  Village  of  Auburn  v.  Good-  S.  1874,  ch.  131,  sec.  5,  §  8. 
Kales  Fut.  Int. — 20                         305 


§292] 


FUTURE   INTERESTS 


Ch.  XIII 


made  and  certified  by  the  county  surveyor.  ^^  Still  later  we  have 
a  further  line  of  cases  to  the  effect  that  under  this  act  of  1833 
a  plat  acknowledged  before  a  clerk  of  the  circuit  court  or  be- 
fore a  notary  was  insufficient  ^-  because  the  statute  required 
acknowledgement  before  a  justice  of  the  supreme  court,  a  justice 
of  the  circuit  court  or  a  justice  of  the  peace. ^^'  It  has  also  been 
declared  to  be  the  law  that  there  can  be  no  statutory  dedica- 
tion without  the  acceptance  of  the  municipality.^^  These  rules 
have  operated  so  often  to  defeat  a  statutory  dedication  in  the 
cases  coming  up  to  the  Supreme  ('ourt,  that  the  point  of  the 
construction  or  validity  of  the  acts  which  give  the  fee  of  the 
street  to  the  abutting  owner  upon  the  vacation  of  a  statutory 
plat  made  subsequent  to  such  acts,  has  never  once  arisen  since 
Gehkardt  v.  Reeves.  Instead,  the  Supreme  Court,  again  and 
again,  finds  that  there  is  only  a  common  law  dedication  so  that 
the  fee  of  the  streets  is  in  the  abutting  owners.'^^^ 

All  this  may  not  be  sufficient  to  charge  the  court  with  having 
consciously  adopted  a  technical  and  literal  construction  of  the 


11  Village  of  Auburn  v.  Goodwin, 
128  111.  57;  Village  of  Augusta  v. 
Tyner,  197  111.  242. 

Observe,  however,  that  now  by 
the  Act  of  1874  (E.  S.  1874,  chap. 
109,  sec.  1;  (Kurd's  R.  S.  (1903) 
chap.  109,  sec.  1)  the  holding  of 
Oebhardt  v.  Reeves  is  law.  The 
plat  may  be  made  by  any  "compe- 
tent surveyor. ' '  In  Lee  v.  Town  of 
Mound  Station,  118  111.  304,  313,  it 
was  held  that  a  plat  by  a  surveyor 
who  was  not  the  County  surveyor 
was  valid  under  the  Act  of  1874. 
There  is  a  difficulty  about  the  case, 
however,  because  the  plat  there  in 
question  was  made  in  1862. 

Observe,  also,  that  the  other  point 
of  Gebhardt  v.  Reeves,  that  the  plat 
was  sufficient  under  the  statute  even 
if  there  was  no  corner  stone,  if 
there  were  other  known  and  perma- 
nent monuments,  has  been  made  law 
by  statute:  E.  S.  1874.  Chap.  109, 
sec.  1;  Kurd's  R.  S.  (1903)  chap. 
109,  sec.  1. 


12  Gould  V.  Howe,  131  111.  490; 
Village  of  Vermont  v.  Miller,  161 
111.  210;  Davenport  Bridge  Ry.  Co. 
V.  Johnson,  188  111.  472;  Rock 
Island  &  P.  Ry.  Co.  v.  Johnson,  204 
111.  488. 

13  Laws  1833,  p.  .199,  sec.  4,  (1  A. 
&  D.  R.  E.  S.  p.  1039)  ;  R.  S.  1845 
ch.  25,  Div.  1,  sec.  20,  (1  A.  &  D. 
R.  E.  S.  p.  1041) . 

I'l  Hamilton  i;.  Chicago,  B.  &  Q. 
R.  R.  Co.,  124  111.  235;  Village  of 
Vermont  v.  Miller,  161  111.  210. 

15  Village  of  Vermont  v.  Miller, 
161  111.  210;  Gould  v.  Howe,  131  111. 
490;  Davenport  Bridge  Ry.  Co.  v. 
Johnson,  188  111.  472,  204  111.  488; 
Earll  V.  City  of  Chicago,  136  111. 
277;  Thomson  v.  McCormick,  136 
111.  135;  Thompson  v.  Maloney,  199 
111.  276;  Clark  v.  McCormick,  174 
111.  164;  Hamilton  v.  Chicago,  B. 
&  Q.  R.  R.,  124  111.  235;  Henderson 
V.  Hattorman,  146  111.  555. 


306 


Cn.  XIII|  CONDITIONAL   ESTATES  [§293 

dedication  Act  of  1838  in  order  to  avoid,  as  far  as  possible,  the 
effect  of  Gehhardt  v.  Reeves,  but  it  does  make  it  clear  that  the 
object  attempted  to  be  accomplished  by  the  acts  in  favor  of 
the  abutting  owner  are  neither  unjust  to  the  dedicator  nor 
contrary  to  public  policy. 

55293.  Their  constitutionality:  Tt  may  well  b<'  wondered 
how  a  statute  whicii  is  not  unjust  to  an  individual,  which  is 
founded  on  a  sound  public  policy  and  against  which  there  is 
no  express  constitutional  prohibition  can  be  invalid  as  w^ithout 
the  power  of  a  legislature  in  which  is  vested  all  legislative  power 
except  that  expressly  denied  it.  The  argument  in  favor  of  the 
power  of  the  legislature  may,  however,  be  put  a  little  more 
formally  in  this  way:  The  act  in  favor  of  the  abutting  owner 
constitutes  one  of  the  terms  upon  which  statutory  dedications 
may  be  made.  One  who  voluntarily  makes  such  a  dedication, 
therefore,  submits  to  give  up  his  right  to  get  back  the  land  upon 
vacation  of  the  dedication,  and  acquiesces  in  its  passing,  either 
directly  as  under  the  acts  of  1865  i«  and  1874  i"  or  indirectly 
by  conveyance  by  the  municipality  as  under  the  act  of  1851,*^ 
to  those  who  may  be  the  abutting  owners  at  the  time  of  the 
vacation. 

This  argument  seems  to  have  been  very  clearly  presented  in 
Gebhardt  v.  Reeves  ^'*  and  the  court  flatly  refused  to  recognize 
its  force,  saying:  "The  fee  plaintiff  had  in  the  street  and 
alley,  could  not  be  divested  and  transferred  to  the  adjacent 
lot  owners  by  direct  legislative  action ;  nor  could  authority  be 
given  to  any  agency  to  do  it  for  private  purposes."  The  court 
speaks  of  this  legislation  as  if  it  amounted  to  taking  the  prop- 
erty of  one  man  and  transferring  it  to  another,  without  com- 
pensation. 

Such  language  was  intelligible  in  St.  John  v.  Quitzow  -'^  where 
the  dedication  had  been  made  prior  to  1851,  but  in  Gehhardt  v. 
Reeves,  where  the  court  recognize  that  the  dedication  was  made 

i*^  Ante,  §288.  he,    in    effcft,    disclaimed,    in    fax  or 

1"  Ante,  §  288.  of   his   grantee,   all   interest   in   the 

18  Ante,  §  288.  street,  in  case  it  should  thereafter 

1975  111.  301,  308:  "The  proposi-  be  vacated,  and  agreed  that  what- 

tion  relied  on,"  the  Court  says,  "is  ever  interest  the  city  may  have  had 

[thatl    this  law,   in   force   when  the  therein   should    be    conveyed   to    the 

plat  was  made,   in   some   way  made  adjoining  owners." 

a    contract    for    ])l;nntifF,    by    which  ^<>  72  111.  334. 

307 


§  293]  FUTURE   INTERESTS  [Ch.  XIII 

after  tlie  law  of  1851  Aveiit  into  force,-i  such  language  is  unin- 
telligible.-- If  applied  in  the  slightest  degree  to  other  legisla- 
tion it  would  require  some  curious  results.  AVhy,  for  instance, 
would  it  not  make  a  statutory  dedication  invalid  to  pass  a  fee 
simple  to  the  municipality?  At  common  laAv  the  dedication 
gives  the  public  only  an  easement  over  the  land.  Why,  then, 
does  not  the  statute  deprive  the  dedicator  of  his  property  and 
transfer  it  to  another  without  compensation?  If  the  legislature 
may,  to  a  limited  extent,  take  the  fee  out  of  the  dedicator  upon 
a  statutory  dedication,  why  may  it  not  take  it  out  of  him  to 
the  whole  extent  and,  in  that  case,  of  what  consequence  is  it 
to  him  what  becomes  of  it?  If  the  legislature  has  no  power 
to  give  a  certain  legal  effect  to  the  dedication  how^  has  it  any 
power  to  give  a  particular  legal  effect  to  what,  under  the  statute 
de  donis,  would  be  an  estate  tail?  If  it  can  be  said  that  the 
statute  in  favor  of  the  abutting  owners  deprives  the  dedicator 
of  his  property  without  due  process  of  law,  because  it  deprives 
him  of  what,  but  for  the  statute,  would  return  to  him,  may  it 
not  as  plausibly  be  said  that  the  turning  of  an  estate  tail  into 
an  estate  for  life  in  the  donee  in  tail  with  a  remainder  in  fee 
to  the  heirs  of  the  body  of  the  donee,--"*  is  equally  depriving, 
without  due  process  of  law,  the  creator  of  the  estate  and  the 
first  taker,  of  their  property?  In  the  absence  of  statute,  the 
first  taker  would  have  an  estate  tail  and  the  creator  of  the 
estate  a  reversion  in  fee.  If  the  legislature  has  the  power  to 
impose  such  conditions  upon  grantors  and  devisors  that  when 
they  try  to  do  one  thing,  their  act  shall  have  an  entirely  dif- 
ferent effect,  surely  there  can  be  no  objection  to  the  legislature 
saying  to  an  individual:  You  shall  make  a  statutory  dedica- 
tion only  upon  the  condition  that  the  legal  effect  of  your  act 
shall  be  to  pass  the  fee  to  the  dedicated  strip  to  the  abutting 
owners  upon  the  vacation  of  the  dedication. ^4 

21  Ante,  §  290,  note  90.  Act  of  I860,  afterwards  appearing 

22  Yet  St.  John  v.  Quitzow,  72  as  sec.  9  of  the  Landlord  and  Ten- 
Ill.  334,  is  quoted  both  in  Ge])hardt  ant  Act  of  1873,  providing  for  for- 
V.  Beeves,  75  111.  301,  and  Helm  v.  feiture  upon  a  10  day  notice  to 
Webster,  8.5  111.  116,  as  quite  dp-  quit,  made  any  breach  of  covenant 
cisive  against  the  abutting  owner.  or    agreement    on    the    part    of   the 

23  Post,  §§402  et  seq.  lessee  a  ground   of   forfeiture,  even 

24  Our  Supreme  Court  has  hold  though  it  was  not  expressly  made 
also   {ante,  §  2.']7)  that  sec.  2  of  an  a  ground  of  forfeiture  in  tlie  lease. 

308 


Ch.  Xillj  CONDITIONAL   ESTATES  [§294 

Au  excellent  argument   can  be  made  in   favor  of  these  acts 
upon  the  ground  that  the  right  of  the  dedicator  exists  only 
by  the  favor  of  the  legislature.-''     ^Vhy,  then,   may  not  such 
legislative  favor  be  at  any  time  withdrawn,  leaving  the  fee  to 
vest  absolutely  in  the  municipality  upon  a  statutory  dedication, 
so  that  even  upon  their  narrower  meaning  these  acts  would 
operate  very  greatly  in  favor  of  the  abutting  owner?     Or  it 
may  be  inquired:     If  the  legislature  can  cause  the  dedicator, 
who  otherwise  would  get  nothing,  to  become  invested  with  a 
right  to  the  fee  if  the  dedication  is  vacated,  why  may  not  the 
legislature  cause  the  abutting  owners,  who  would  otherwise  get 
nothing,  to  become  invested  with  title  upon  the  same  event? 
In  short,  if  the  legislature  can,  upon  a  statutory  dedication, 
pass  a  fee  subject  to  a  condition  subsequent  in  favor  of  the 
dedicator  who  otherwise  would  obtain  nothing,  why  can  it  not 
shift  the  fee  of  the  municipality  to  the  abutting  owners  upon 
the  happening  of  the  same  condition  ?    So  long  as  the  person  to 
whom  the  fee  is  shifted  is  not  arbitrarily  selected,  who  can  say 
that  the  act  is  not  as  constitutional  in  one  case  as  in  the  other? 
Finally,   it  may  well  be  contended  that  since  the  only  ob- 
stacle in  the  way  of  the  right  of  the  dedicator  upon  the  con- 
veyance by  him  of  the  abutting  lots  is  that  a  possibility  of 
reverter  or  a  right  of  entry  for  condition  broken  is  not  trans- 
ferable by  deed,2«  these  statutes  in  favor  of  the  abutting  owner 
may  well  be  construed  as  permitting  this  right  of  the  dedicator 
to  pass  under  the  same  circumstances  and  in  the  same  way 
that  the  fee  of  the  dedicator  passes  where  the  dedication  is  at 
common  law.-" 

$  294.  Retroactive  effect  of  these  acts— When  their  nar- 
rower meaning  is  adopted:  Tf  a  municipality,  before  1851  had 
dedicated,  according  to  the  statute,  land  which  it  held  in  its 

No  one  ever  suggested  that  this  be  um-onstitutional  and  void.  In  fact, 
was  unconstitutional  as  applied  to  one  wonders  what  acts  will  not  be 
leases  entered  into  after  the  act  void  under  such  a  holding  as  that 
uas  passed.  But  if  these  acts  in  in  Gebhardt  r.  Reeves, 
favor  of  the  abutting  owner  upon  25  Ante,  §  286. 
the  vacation  of  a  statutory  plat  are  '^^  Ante,  §240;  post,  §§300,  302. 
unconstitutional  when  applied  to  27  This,  it  is  believed,  would  be 
plats  executed  after  these  a^'ts  were  an  excellent  theory  upon  which  to 
in  farce,  then  sec.  9  of  the  Land-  frame  new  legislation  upon  this  sub- 
lord    and    Tenant   Act   must   equally  ject. 

309 


§295]  FUTURE   INTERESTS  .  [Ch.  XIII 

private  capacity,  its  right  to  the  fee  upon  vacation  of  the  dedi- 
cation would  be  a  right  held  b.y  it  in  its  private  capacity.  How 
far,  then,  could  the  legislature,  by  retroactive  legislation  after 
1851  deprive  the  municipality  of  that  right  and  give  it  to  the 
abutting  owner? 

§  295.  Upon  their  wider  meaning:  In  their  broader  mean- 
ing  it  is  clear  that  none  of  these  acts  in  favor  of  the  abutting 
owner  -'^  can  have  any  retroactive  effect  so  as  to  control  the 
vacation  when  the  dedication  was.  made  prior  to  1851,  It  may 
be  worth  while  to  point  out  that  this  was  the  real  point  made 
in  St.  John  v.  Quitzow.-^  The  subsequent  positive  citation  ^^ 
of  this  case  for  the  point  that,  where  the  dedication  was  made 
by  a  private  individual  after  the  act  of  1851  went  into  effect, 
that  act,  if  effective  to  aid  the  abutting  owner,  would  be  un- 
constitutional, is  clearly  erroneous. 

It  would  seem,  also,  that  a  vacation  by  private  act  could  not, 
under  the  law  of  1865,  have  any  retroactive  effect  over 
dedications  made  between  1851  and  1865,  for  the  act  of  1851 
had  no  application  where  the  vacation  was  by  any  other  body 
than  an  incorporated  city.  Hence,  as  to  a  vacation  by  private 
act,  the  act  of  1865  would  be  improperly  retroactive  if  it  should 
operate  to  divest  the  right  of  the  dedicator  to  get  back  the  fee  of 
the  street  upon  its  vacation  by  any  other  body  than  an  incor- 
porated city.  This  fully  explains  the  language  of  the  court  in 
Village  of  Hyde  Park  v.  Borden.^^  There  the  dedication  was 
made  between  1852  and  1865.  The  vacation  occurred  by  private 
act  which  went  into  effect  on  the  same  day  as  the  act  of  1865  re- 
garding the  rights  of  abutting  owners.  The  court  declared 
shortly:  "If  Michigan  Terrace  had  been  vacated,  the  land 
within  its  limits  reverted  to  Charles  Cleaver,  the  original  owner, 
who  dedicated  the  street." 

If  the  abutting  owner  became  such  when  the  act  of  1851 
was  in  force  and  the  vacation  occurred  after  1874,  then  these 
questions  arise:  Would  the  saving  clause  of  the  repealing  act 
of  1874  operate  to  make  the  act  of  1851  still  controlling  so  that 
the  city  might  quit  claim  to  abutting  owners?  Or  would  that 
power  be  gone  by  the  repeal,  and,  if  so,  would  the  act  of  1874 

2fiAnte,  §288.  .'508;   Helm  v.  Webster,  85  111.   116, 

29  72  111.  3.34.  118. 

a"  r!,.})lianlt  V.  Eeevps,  75  111.  .301,  ?•!  94  111.  26,  34. 

310 


CH.  XIII]  CONDITIONAL    ESTATES  [  i5  296 

have  a  retroactive  effect  upon  tlie  ground  that  it  was  sub- 
stantially a  re-enactment  of  the  act  of  1851  ?  These  difficulties 
might  have  been  raised  in  Ileltn  v.  Wehster,'-'-  for  there  the 
dedication  was  in  1855,  the  defendant  became  an  abutting  owner 
in  1872  and  in  1876  the  vacation  occurred.  So  far  as  the  court 
intimated  any  opinion  at  all,  it  inclined  toward  the  view  that 
the  act  of  1874  ■'•'  would  be  applied  upon  the  ground  that  it 
was  in  substance  like  the  act  of  1851. 

If  the  abutting  owner  claiming,  became  such  after  the  act  of 
1874,  there  is  more  difficulty.  It  is  less  possible  to  say  that 
the  act  of  1851  is  in  force  for  his  benefit  under  the  saving  clause 
of  the  repealing  act  of  1874.  Perhaps,  however,  it  is  not  more 
difficult  than  before  to  say  that  the  act  of  1874  shall  have  a 
retroactive  effect  as  to  dedications  occurring  under  the  law  of 
1851,  because  it  is  merely  a  re-enactment  of  the  law  of  1851. 

Observe  that  the  act  of  1865  had  a  practical  operation  for 
only  four  years  because  it  applied  only  where  the  vacation  was 
by  act  of  the  state.  This  practically  confined  its  operation  to 
the  case  of  vacation  by  private  act  of  the  legislature.  The 
constitution  of  1870  ''^  deprived  the  legislature  of  power  to  make 
special  laws  for  the  vacation  of  "roads,  town  plats,  streets, 
alleys,  and  public  grounds."  The  difficulties,  therefore,  which 
might  have  arisen  when  the  dedication  occurred  under  the  act 
of  1865  and  the  vacation  after  the  act  of  1874  do  not  come  up. 

§  296.  Application  of  these  statutes  in  their  narrower  mean- 
ing to  the  case  of  vacations  of  streets  in  canal  trustees'  sub- 
divisions— Introductory:  Taken  in  their  narrower  meaning 
the  effect  of  these  statutes  in  favor  of  the  abutting  owner  ^^ 
would  seem  to  be  comparatively  slight.  There  is,  however,  a 
particular  chapter  in  the  history  of  land  titles  in  Illinois  whicii 
may  give  this  narrower  meaning  more  importance  than  might 
at  first  be  supposed.  It  is  submitted  that,  w-here  streets  have 
been  dedicated  by  canal  commissioners  and  canal  trustees  of 
the  Illinois  and  Michigan  canal,  we  may  have  an  appropriate 

32  85  111.  116.  the  Act  of  1874,  which  was  inotielled 

•"3  The   Court   speaks   only   of   the  after  the  Act  of  1863. 

Act   of   1865,   hut,  as  has   been   ex-  :'*  Article  IV,  §  22,  R.  S.  1874,  p. 

l>lained   ante,    S  290,   note   9.'{,    there  (54. 

are   excellent    grounds   for   believing  '■'■'' Ante,  ^  288. 

that    the   reference   was   actually    to 

311 


§  297]  FUTURE   INTERESTS  [Ch.  XIII 

case  for  the  application  of  these  statutes  in  favor  of  the  abutting 
owner,  so  that,  upon  the  vacation  of  such  streets,  the  fee  will 
pass  to  him.-''' 

§  297.  Power  of  canaJ  commissioners  and  canal  trustees  to 
dedicate  streets:  By  an  act  of  Congress  of  March  2,  1827^^ 
the  United  States  granted  to  the  state  of  Illinois  the  alternate 
sections  of  the  public  lands  on  each  side  of  the  proposed  route 
of  the  Illinois  and  Michigan  canal,  for  five  miles  in  width  along 
its  entire  length.  Under  an  act  of  Jan.  22,  1829,^^  passed  to 
facilitate  the  construction  of  the  canal,  canal  commissioners 
were  appointed.  From  that  time  on  until  the  canal  trustees 
were  appointed  under  an  act  of  1843  '■^^  the  work  of  construct- 
ing the  canal  and  administering  canal  lands  was  carried  on  by 
canal  commissioners.  Dviring  this  time  the  title  to  the  canal 
lands  still  remained  in  the  state  and  title  to  such  parts  as  were 
sold  passed  b}^  the  patent  of  the  state  ^"  upon  sale  by  the  com- 
missioners in  accordance  with  the  statutes.  The  acts  of  the 
commissioners  seem  to  have  been  merely  the  acts  of  the  state 
itself  by  its  proper  administrative  officers.  Under  an  act  of 
1843  ^1  a  loan  was  negotiated  to  effect  the  completion  of  the 
canal  and  for  the  purpose  of  securing  the  bond  holders  it  was 
provided  that  the  canal  itself  and  all  the  remaining  canal  lands 
should  be  conveyed  to  trustees,  who  were  given  full  power  to 
sell  the  lands  to  raise  money  to  pay  off  the  loan.  The  con- 
veyance to  the  trustees  was  actually  made  in  1845,'*-  There- 
after the  canal  and  its  lands  were  administered  by  the  canal 
trustees  as  distinguished  from  the  canal  commissioners.  This 
trust  continued  till  1871  when  the  trustees  turned  over  the  canal 
and  all  lands  remaining  in  their  hands  to  the  state  ^^  and 
executed  a  release  deed.  From  tliat  time  the  canal  and  its 
property  has  been  administered  by  canal  commissioners  under 

SB  See  People  v.  C.  &  N.  W.  Ey.,  S.  861)  ;  sec.  37,  Act  of  1836,  (Laws 

239  111.  42.  1836,  p.  145,  sec.  37,  1  A.  &  D.  R. 

3^4  Stats,  at  Large,  234;   Hurd 's  E.  S.  867). 

R.  S.  (1903)  p.  90.  41  Laws  1843,  p.  54,    (1   A.  &  D. 

38  Laws  1829,  p.  14,  sec.  7;   (1  A,  R.  E,  S,  879). 

&  D,  K.  E.  S.  p.  859).  42  Laws  1845,  p.   31,   (1   A.  &  D, 

39  Laws  1843,  p.  54,  (1  A.  &  D.  R.  R.  E.  S.  844)  ;  1  Moses,  Illinois  His- 
E.  S.  879).  torieal  and  Statistical,  466. 

40  Sec.    7,    Act    of    1829,    (Laws  43  Laws  1871,  p.  215. 
1829,  p.  14,  sec.  7,  1  A.  &  D.  R.  E. 

312 


Ch.  XIII|  CONDITIONAL    ESTATES  [§297 

an  act  of  ^lareh  7,  1872  ■*'  which  declares  tliem  to  be  acting 
"as  oflficers  of  the  state,  and  not  as  a  distinct  corporation." 
In  the  period  from  1829  to  1871  the  sale  of  canal  lands,  first 
by  the  canal  commissioners  and  then  by  the  canal  trustees, 
played  an  important  part  in  the  scheme  of  raising  money  to 
build  the  canal  and  to  pay  off  loans  floated  in  aid  of  its  con- 
struction. In  order  to  sell  to  the  best  advantage  it  was  found 
advisable  to  subdivide  many  tracts  of  land  and  in  some  in- 
stances to  lay  out  whole  towns.  The  act  of  1829  ^''  gave  the 
commissioners  power  to  lay  off  town  lots.  An  amendatory  act 
of  1831  ••"  gave  them  power  to  subdivide  tracts  into  lots.  Under 
these  two  acts  the  original  towns  of  Chicago  ^^  and  Ottawa  were 
laid  out.4«  Sec.  34  of  an  act  of  1835  «  and  See.  32  of  an 
act  of  1836  ^<^  were  identical  in  directing  the  commissioners  to 
"examine  the  whole  canal  route,  and  select  such  places  thereon 
as  may  be  eligible  for  town  sites,  and  cause  the  same  to  be  laid 
off  into  town  lots,  and  they  shall  cause  the  canal  lands,  in  or 
near  Chicago,  suitable  therefor,  to  be  laid  off  into  town  lots." 
See,  33  of  the  act  of  1836  -'^  contains  the  further  direction  to 
the  commissioners  to  proceed,  on  the  20tli  day  of  June  next, 
to  sell  the  lots  in  the  town  of  Chicago  and  such  part  of  the 
lots  in  the  town  of  Ottawa,  as  also  fractional  section  fifteen, 
adjoining  the  town  of  Chicago,  "it  being  first  laid  oft'  and  sub- 
divided into  town  lots,  streets  and  alleys,"  as  in  their  judgment 
will  best  promote  the  interests  of  the  canal  fund.  By  an  act 
of  1837'''-  the  commissioners  were  given  power  "to  cause  sur- 
veys of  such  town  sites  as  they  may  select  to  be  laid  out  by 
such  person  or  persons  as  they  may  think  proper."     By  Sec. 

44  Laws  1871,  p.  213.  49  Laws  1835,  p.  223,   (1  A.  &  D. 

45  Laws  1829,  p.  14,  sec.  7,  (1  A.       ^-  K.  S.  863). 

&  D.  R.  E.  S.  859).  -""Laws  1836,  p.  150;   Chicago  v. 

^«T  ,ooi  on  -7     ^1    A         T^umsey,  87  111.  348,  352;   Matthies- 

<flLaw8  1831,  p.  39,  sec.  7,  (1  A.  „    „    „.       ^  t  \,  ,,      ,,, 


&  D.  R.  E.  S.  862). 


sen  &  H.   Zinc  Co.  r.  LaSalle,  117 

111.  411,  416. 

47  The   original   Town   of  Chicago  „  ^^^^  ^^.^^^  ^    ^.^^   ^^  ^    ^  ^ 

lay   west   of    State    street,   bounded  ^    j,    g    ^q-^  .  Chicago  v.  Rumsey, 

by    Madison,    Desplaines    and    Kin-  g.^  jjj   ^^g  ^^o 

zie  streets.  r,-- Laws  1837,  p.  39,  sec.  7,  (1  A. 

48  History  of  Illinois,  hy  Davidson  &  D.  R.  E.  s.  p.  868.  sec  7)  ;  Mat- 
&  Stuve,  476-7;  1  Moses,  Illinois  thiessen  &  H.  Zinc  Co.  v.  LaSalle, 
Historical  and   Statistical,  464.  117   111.   411,   416. 

313 


§  298]  FUTURE   INTERESTS  [Ch.  XIII 

8  of  the  act  of  1843,^-'  under  which  the  canal  trustees  held  it  was 
provided  that  the  said  board  of  trustees  "so  far  as  is  not  in- 
compatible with  this  act  shall  possess  all  the  powers  and  perform 
all  the  duties  conferred  upon  the  Board  of  Commissioners  of  the 
Illinois  and  Michigan  canal,"  by  the  act  of  1836  and  the  acts 
supplementary  and  amendatory  thereof.  Under  this  clause  the 
powers  conferred  upon  the  canal  commissioners  to  subdivide  and 
lay  out  town  lots  were  given  to  the  canal  trustees.^^ 

That  these  powers  to  subdivide  and  lay  out  towns  and  town 
lots  necessarily  included  the  power  to  dedicate  streets,  is  hardly 
open  to  question. ^^ 

§  298.  Upon  such  dedication  the  fee  parses,  leaving  a  right 
to  enter  in  the  dedicator  in  case  of  vacation:  It  is  clear  that 
dedications  made  under  the  authority  given  in  these  canal  acts 
operated  to  convey  the  fee  of  the  street  to  the  municipality.^*^ 

The  right  to  re-enter  upon  the  fee  of  a  street  upon  the  vaca- 
tion of  a  dedication  remained  originally  in  the  state  as  to  all 
streets  dedicated  by  commissioners.  Whether  such  rights  passed 
to  the  canal  trustees  who  represented  the  bondholders  under  the 
act  of  1843  need  not  now  be  answered,  for  even  if  they  did  the 
equity  in  them  remained  in  the  state  and  the  legal  title  to  them 
returned  to  the  state  upon  the  termination  of  the  canal  trustees' 
trust  in  187 1.-''"  When  the  streets  were  dedicated  by  the  canal 
trustees,  the  right  to  re-enter  in  case  of  a  vacation  was  in  the 
trustees,  in  the  first  instance,  as  a  security  for  the  holders  of 
canal  bonds.  But  here,  also,  the  equity  in  the  right  to  re-enter 
was  in  the  state,  and,  when  the  trusts  were  completed  and  the 
trustees  released  to  the  state  in  1871,  the  legal  right  to  re-enter 
upon  these  vacated  streets  was  in  the  state. 

§  299.  Upon  the  vacation  of  a  canal  subdivision  the  fee  in 
the  street  should  go  to  the  abutting  owners :    If,  while  the  act 

53  Laws  1843,  p.  55,  sec.  8.  472,  480-481 ;  E.  I.  &  P.  Ey.  Co.  v. 

5*  Trustees    v.    Brainard,    12    111.  Johnson,   204  111.   488,  490.     Under 

487,  501-502.  the   holding    of    the   above   cases   a 

55  Matthiessen   &   H.   Zinc   Co.  v.  plat   by  the   Canal   Trustees  was  a 

LaSalle,    117    111.    411;    Cliieago    v.  valid    statutory    dedication    though 

Rumsey,  87  111.  348,  not  acknowledged   at   all,  since   the 

50  Matthiessen   &   H.   Zinc   Co.   v.  Dedication  Act  of  1833  did  not  ap- 

I.aSalle,    117    111.    411;    Chicago   v.  ply  to  it.     (City  of  Chicago  v.  Rum- 

Rumsey,     87     111.     348;     Davenport  sey,  87  111.  348,  353.) 

Bridge  Ry.  Co.  v.  Johnson,  188  111.  ^>-  Ante,  S  297. 

314 


Ch.  XlIIj  CONDITIONAL    ESTATES  [§299 

of  1857  5**  was  in  force,  the  vacation  be  made  of  streets  dedi- 
cated by  the  canal  trustees,  then,  if  the  dedication  was  made 
before  1851,  the  trustees  must  take  the  fee  under  St.  John  v. 
Quitzow:'^*  Tf  it  was  made  after  1851  they  take  it  under  the  rule 
of  Gehhardt  v.  Reeves.''"  Suppose  under  these  circumstances 
that  the  trusts  of  the  canal  trustees  terminated  without  the 
trustees  having?  disposed  of  the  fee  for  the  benefit  of  the  bond- 
holders, could  the  abutting^  owners  claim  under  the  act  of  1851? 
Could  the  abutting  owners  after  the  act  of  1874," ^  claim  under 
the  words  of  that  act — when  any  street  *'has  been  or  shall  be 
vacated"? 

If  the  vacation  was  of  streets  dedicated  by  canal  commissioners 
the  case  would  not  be  altered  if  the  right  of  the  state  were  trans- 
ferred to  the  canal  trustees  under  the  acts  of  1848  and  1845.''- 
If  the  rights  of  the  state  were  not  transferred  to  the  trustees, 
then  the  abutting  owners  should  be  entitled  under  the  act  of 
1851  upon  the  ground  that  the  legislature  could  so  provide  for 
the  disposition  of  the  lands  of  the  state  if  it  saw  fit  to  do  so. 

If  the  vacation  be  made  under  the  act  of  1865*'^  the  same 
considerations  will  control  the  result. 

If  the  vacation  be  made  since  the  act  of  1874  "^  it  is  submitted 
that  there  is  no  reason  why  that  act  in  favor  of  the  abutting 
owner  should  not  apply.  In  such  a  case,  whether  the  dedication 
was  by  the  canal  commsisioners  and  the  right  to  re-enter  passed 
to  the  canal  trustees,  or  whether  the  dedication  be  made  by  th<' 
canal  trustees,  the  trusts  of  the  canal  trustees  having  terminated, 
the  legal  title  to  the  right  to  re-enter  would  be  in  the  state  when 
the  act  of  1874  took  effect.  There  is  nothing  unconstitutional 
or  improper  in  the  legislature  so  disposing  of  the  interest  of  the 
state  in  favor  of  the  abutting  owner.  If  the  act  of  1874  is  to 
have  any  effect  at  all  it  must  at  least  vest  the  al)utting  owner 
with  the  fee  of  the  vacated  streets  in  canal  subdivisions.  In 
Matthiessen  d'  H.  Zinc  Co.  v.  LaSalle^''  it  is  hinted  that  such  a 
result  is  not  impossible. 

58  Ante,  §  288,  '•■i  Ante,  8  297. 

59  72  111.  334;    ante,  §295.  f'^  Ante,  §288. 
"0  75  111.  301;  ante,  §290.  '•*  Ante,  §288. 

«i  Ante,  §  288.  <••-'  117  111.  411,  418. 


315 


CHAPTER  XIV. 
POSSIBILITIES  OF  REVERTER. 

§300.  Possibilities  of  reverter  described:  An  estate  to  A 
and  his  heirs  until  they  ceased  to  be  tenants  of  the  Manor  of 
Dale  is  the  example  of  a  determinable  fee  given  by  Professor 
Gray  in  his  Rule  against  Perpetuities.^  The  learned  author 
then  proceeds:  "On  the  happening  of  the  contingency,  the 
grantor  was  in  of  his  old  estate  without  entry.  The  estate  was 
not  cut  short,  as  it  would  have  lieen  b}'  entry  for  breach  of 
condition,  but  expired  hy  the  terms  of  its  original  limitation. 
After  a  life  estate  of  this  kind  a  remainder  could  be  limited. 
After  a  fee,  there  could  be  no  remainder;  but  there  was  a 
so-called  possibility  of  reverter  to  the  feoffor  and  his  heirs  which 
was  not  alienable. "  - 

§301.  Distinguished  from  a  conditional  limitation:  Our 
Supreme  Court  has  been  very  fond  of  calling  fee  simple  estates, 
which  are  subject  to  shifting  limitations  over,  determinaljlc 
fees.^     It  seems  clear,  however,  that  the  determinable  fee  here 

1  §  299.  hypothesis,  therefore,  that  the  gran- 

2  The  inalienability  of  a  possi-  tor  had  a  possibility  of  reverter, 
bility  of  a  reverter  seems  to  have  the  legal  estate  had  reverted  before 
been   clearly   recognized   in    Presby-  the  deed  was  made. 

terian  Church  v.  Venable,  159  111.  3  Post  v.  Eohrbach,  142  111.  600, 
215.  There  the  grantor  devised,  606;  Bradsby  v.  Wallace,  202  111. 
prior  to  the  event  (viz.  the  disso-  239,  244;  Becker  v.  Becker,  206 
lution  of  the  grantee,  a  charitable  111.  53,  56;  Gannon  v.  Peterson,  193 
corporation)  upon  which  the  fee  111.  372,  381;  Koeflfler  v.  Koeffler, 
was  to  be  determined,  and  the  185  111.  261,  266;  Knight  v.  Pott- 
court  clearly  held  that  no  interest  gieser,  176  111.  368,  375;  Lombard 
of  the  grantor  passed  by  the  will.  v.  Witbeck,  173  111.  396;  406;  Sum- 
See  also  City  of  Berwyn  v.  Berg-  mers  v.  Smith,  127  111.  645,  650; 
lund,  255  111.  498,  .503.  Orr  v.  Yates,  209  111.  222,  229;  Wil- 
Observe  that  in  Mott  v.  Danville  liams  v.  Elliott,  246  111.  548,  552; 
Seminary,  129  111.  403,  no  question  Morton  v.  Babb,  251  111.  488;  Ask- 
of  this  sort  was  raised  because  the  ins  v.  Merritt,  254  111.  92,  95;  De- 
deed  by  the  original  grantor  was  frees  v.  Brydon,  275  111.  530,  546; 
made  after  the  event  upon  which  Aloe  v.  Lowe,  278  111.  233,  238.  See 
the  fee  was  to  determine.     On  the  also  "Determinable  Fees,"  by  John 

316 


Ch.  XIV]  l-OSSIBILITIKS    OF    KEVKKTEK  [§302 

spoken  of  is  ouly  the  fee  simple  wliidi  is  cut  slioi-l  to  give  place 
to  the  future  limitation.  The  ealliiig  of  it  a  (h'teiiiiiuable  fee 
is  not,  it  would  seem,  teehnically  exaet.  "A  (pialified  fee," 
writes  Professor  Gray,^  "is  one  subjeet  to  a  si)eeial  limitation; 
that  js,  a  limitation  whicli  marks  the  orijuniial  bounds  of  the 
estate,  and  after  which,  in  case  of  a  fee,  no  otiier  estate  can  ])e 
granted."'  A  conditional  limitation,  as  the  term  is  commonly 
used,  cuts  off  the  first  estate  and  introduces  another.  An  estate 
to  A  and  his  heirs,  tenants  of  the  INfanor  of  Dale,  is  an  instance 
of  a  qualified  fee.  An  estate  to  A  and  his  heirs,  but  if  he  dies 
unmarried,  then  to  B  and  his  heirs,  is  a  fee  simple  subjeet  to  a 
conditional  limitation.  Qualified  fees  were  good  at  common  law, 
but  were  done  away  with  by  the  Statute  of  Quia  E  nipt  ores.'' 
Conditional  limitations  were  not  good  at  common  law ;  they  were 
first  introduced  by  the  Statutes  of  Uses  and  Wills.  "^ 

§302.  How  far  valid  in  Illinois:  A  series  of  no  less  than 
three  cases  seems  to  have  settled  it  as  law,  here,  that,  upon  the 
dissolution  of  a  charital)le  corporation  having  neither  stock- 
holders nor  creditors,  land,  which  had  been  conveyed  to  it  by 
w^ay  of  gift,  reverts  to  the  original  grantor.^  This  result  can 
hardly  be  explained  upon  the  ground  that  the  origina'  grantor 
has  a  right  of  entry  for  the  breach  of  a  condition  subsequent 
implied  in  law,  for  in  Mott  v.  Banville  Scminarij,^  it  was  held 
that  a  conveyance  by  the  original  donor,  after  the  dissolution 
of  the  corporation  but  before  he  had  made  any  entrj^  or  doii 
any  other  act  necessary  to  perfect  a  forfeiture,  was  valid  to  pass 
the  fee  simple.  The  court  called  the  interest  of  the  donor  a  possi- 
bility of  reverter,  and.  after  remarking  that,  upon  the  breach  of 

Maxcy    Zane,    17    Harv.    Law    Ee\ .  verter      clause      ami      ejectment 

297.  Iirought)  ;    Dees   v.   Cheuvronts,   240 

■•  Rule   against    Perpetuities,   §  ;)2.  111.    486    (land   for   school   site   and 

3  See  Wiggins   Ferry  Co.  v.  O.  &  when  it  ceases  to  be  so  used,  to  gran- 

M.  Ry.  Co.,  94  111.  8.>,  9.j,  94.  tor).     But  there  is  no  reverter  where 

6  See  post,  §  302.  the    lands    are    purchased    with    the 

''Post,  §§4.52,467.  funds  of  the  corporation  as  distin- 

8  Life    Assn.   v.   Fassett,    102    111.  gui.shed  from  a  gift  by  the  owner  of 

315,  323,  semhle ;  Mott  v.  Danville  the  land  to  the  corporation:  People 

Seminary,    129    111.    403;    Presbyte-  v.  Braucher,  258  111.  604.     Property 

rian  Church  v.  Venable,  159  111.  215.    '  conveyed  to  a  church  does  not  revert 

See   also   Miller   v.   Riddle,   227    111.  when  the  land  ceased  to  be  used  as 

53    (personalty   involved);   Nortli  v.  a  church:   King  v.  Lee,  282  111.  5.'>0. 

Graham,    235    111.    178    (express    re  »  129  111.  403. 

317 


§302]  FUTURE   INTERESTS  [Ch.  XIV 

a  (,'ondition  subseiiiieiit,  an  entry  was  necessary  to  re-vest  title  in 
the  original  grantor,'"  said:  "But  in  the  present  case,  upon 
the  dissolution  of  the  original  corporation,  we  have  already  seen 
that  the  title  reverted  to  the  donor,  Mrs.  Lamon,  without  any  act 
OH  her  part."^'^ 

For  authority  in  support  of  this  view  our  Supreme  Court 
relies  upon  the  dictum  of  an  earlier  case  ^-  and  a  number  of 
text  writers  ^^  whose  statements  are  all  founded  on  the  language 
of  Coke,'^  that,  upon  the  dissolution  of  a  corporation  "the  donor 
shall  have  again  the  land  and  not  the  lord  by  escheat."  It  is 
certainly  a  matter  of  interest  that  in  1886,  three  years  before 
the  filing  of  the  opinion  in  the  Danville  Seminarif  case,  Professor 
Gray,  in  his  Rule  against  Perpetuities,^^  had  elaborately  pointed 
out  that  since  the  statute  of  Quia  Emptores  no  possibilities  of 
reverter  could  be  created,  and  that  Lord  Coke's  statement  prob- 
ably never  was  the  law  at  all,  and  was  directly  repudiated  as 
early  as  1622,  while  Coke  still  lived.  In  the  Law  Quarterly 
Review  for  July,  1886,'"  the  learned  reviewer  of  Professor 
Gray's  Rule  against  Pei'petuities,  while  questioning  the  con- 
clusion that  since  Quia  Emptores  possibilities  of  reverter  could 
no  longer  be  created  after  a  fee  simple,''''  is  entirelj^  agreed  with 
Professor  Gray  that,  upon  the  dissolution  of  a  corporation,  its 
land  escheats,  and  that  Coke's  view  was  erroneous. 

Doubtless  the  result  reached  b}^  the  court  was  thought  to  be 
a  just  one.  They  may  well  have  said  that  it  is  better  to  have 
such  a  rule  in  this  one  case,  than  to  have  these  lands  escheating 
to  the  county  or  state.  It  would  seem,  however,  that  this  sort  o' 
consideration  was  of  doubtful  propriety  when  the  resort  to  it 

10  Jji^e,  §  244.  13  1   Bl.  Com.   484;    2   Kent   Com. 

11  In  Presbyterian  Church  v.  Ven-  .307;  Angel  &  Ames  on  Corps.,  sec. 
able,  159  111.  215,  the  court  clearly  195  (10th  ed.)  ;  2  Morawetz  ou 
suVjscribes  to  the  same  doctrine.  Corps.,   sec.   1031. 

As  to  the  nature  of  the  right  of  i*  Co.  Lit.  13b;  4  Gray's  Cases  on 

the    dedicator    upon    vacation    of    a  Prop.,  2nd  ed.  2. 

statutory    dedication,    see    ante,    §§  i"'  8§  260-267. 

284,  285.  in  Vol.  2,  p.  394. 

As  to  the  nature  of  the  interest  i^  This    question    gave    rise    to    a 

of  the  mortgagor  where  the  mort-  further  discussion  upon  this  point 
gage  debt   is  barred  liy  the   statute    •   by  Professor  Gray  and  Mr.  Challis: 

of  limitations,  see  ante,   §§229-232.  3  Law  Quart.  Rev.  399,  403. 

12  Life  Association  v.  Fassett,  102 
111.  315,  323. 

318 


('lI.XI\'|  POSSIBILITIES   OP    REVERTER  f  §  302 

oveiiurncd  sound  legal  reasoning  to  the  contrary.  It  is  believed, 
also,  that  it  is  a  short  sighted  policy.  If  it  had  been  held  that 
the  lands  escheated,  then,  if  any  wrong  was  done,  it  would  have 
been  left  to  the  legislature  to  act.  It  is  not  unlikely  that  that 
body  would  have  required  such  hinds  to  be  disti-ibuted  cif  pres 
for  the  purposes  for  which  they  were  originally  donated,  lender 
the  rule  as  at  j^resent  announced  the  legislature's  hands  are  tied 
toi-  ;i  long  time  to  come,  since  no  act  would  be  constitutional 
which  affected  the  rights  of  grantors  of  laiuls  to  such  corpora- 
tions as  arc  now  in  existence. 


319 


CHAPTER  XV. 
REVERSIONS  AND  REMAINDERS. 

TITLE  I. 
KEVERSIONS. 

§  303.  Examples  of  reversions :  The  simplest  instance  of  a 
reversion  occurs  where  a  life  estate  and  nothing  more  is  con- 
veyed. ^  This  is  an  indefeasible  reversion.-  Upon  a  limitation 
to  A  for  life  with  a  contingent  remainder  in  fee  to  another  and 
no  further  limitation,  there  is  a  reversion  in  fee  to  the  grantor 
or  the  heirs  of  the  testator.'^     Here  the  reversion  is  defeasible.^ 

§  304.  Reversions  are  not  destructible  by  any  rule  of  law  de- 
feating intent  and  are  alienable:  Reversions,  whether  de- 
feasible or  indefeasible,  are  vested.  They  stand  ready  through- 
out their  continuance  to  take  effect  in  possession  whenever  and 
however  the  freehold  in  possession  determines.  They  are,  there- 
fore, indestructible  by  any  termination  of  the  preceding  estate. 
They  are  alienable  by  quit  claim  deed,^  or  by  will,**  or  by  exeeu- 

1  Allen  V.  McFarland,  150  111.  455;  v.  Sanitary  Dist.,  270  111.  108;  Kam- 
Sutton  V.  Read,  176  111.  69;  Rose  erer  v.  Kamerer,  281  111.  587.  This 
V.  Hale,  185  111.  378;  Lewis  v.  Har-  must  have  been  true  of  Frazer  v. 
rower,  197  111.  315;  Brown  V.  Brown,  Board  of  Supervisors,  74  111.  282; 
247  111.  528;  Brown  v.  Kamerer,  276  Chapin  v.  Nott,  203  lU.  341,  351. 
111.  69.  In  Brown  v.  Brown,  supra,  Anything  to  the  contrary  in  Madi- 
the  reversion  arose  in  a  peculiar  way.  son  v.  Larmon,  170  111.  65,  has  been 
There  was  a  conveyance  to  A  in  fee  repudiated:  Peterson  v.  Jackson, 
with  the  further  creation  of  life  196  111.  40,  50;  Pinkney  v.  Weaver, 
estates    to    arise    when    B    reached       216  111.  185. 

eighteen.    When  the  life  estate  arose  *  Ante,  §  91.    Observe  that  in  Fra- 

A  had  a  reversion.     See  6  111.  Law.       zer  v.  Board  of  Supervisors,  74  111. 
Rev.  269.  282,    290,   the   court    speaks   of   the 

-Ante    §90.  reversion   in   that   ease   as   a   "con- 

3  Bates    V.    Gillett,    132    111.    287,       tingent  reversion. ' ' 
295;    Lewis    v.    Pleasants,    143    111.  -'Peterson  v.  Jackson,  196  111.  40 

271;    274;    Dinwiddle    v.    Self,    145       (reversion  defeasible  by  the  vesting 
111.   290,  300    (semhle);    Madison  v.       of  a  contingent  remainder). 
Larmon,   170   111.   65,   80;    Harrison  ^  Biggerstaff  v.  Van  Pelt,  207  111. 

V.  Weathorby,   180  111.  418;    Peter-       611. 
son  V.  Jackson,  196  111.  40;  Collins 

320 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  f  §  307 

tioii  sale.'  Tlieii-  alienability  for  the  purpose  of  ell'ccting  u 
merger  of  a  life  estate  has  freciuently  been  upheld.**  Attornment 
by  the  tenant  is  no  longer  necessary  in  Illinois.'' 

§305.  A  difficulty  of  construction:  Suppose  the  grantor 
uses  langnage  making  an  ultimate  gift  to  him.self  or  his  heirs. 
Is  this  to  be  regarded  (1)  as  an  attempted  limitation  of  what 
would  be  a  reversion  and  so  take  effect  as  a  reversion,  or  (2)  are 
the  words  to  be  taken  as  words  of  purchase  creating  alternate 
limitations  to  the  grantor  or  his  heirs P*^  The  first  view  seems 
to  be  the  one  adopted  in  Ifohhir  v.  Of/doi  '^  and  Akers  i\  Clnrh}- 

§  306.  Whether  after  the  creation  by  devise  of  a  freehold 
followed  by  contingent  interests  a  residuary  gift  results  in  the 
creation  of  a  reversion  or  a  remainder:  Egerlon  v.  Masseij  ^  ■ 
held  that  Ihe  residuary  devise  resulted  in  the  creation  of  a  re- 
version. The  contingent  interests  after  the  freehold  were, 
therefore,  contingent  remainders  which  were  destroyed  by  the 
premature  termination  of  the  life  estate  by  merger  in  the  re- 
version. The  same  view  has  been  adopted  by  our  Supreme  Court 
in  two  recent  cases.^"*  The  difficulties  in  sustaining  such  a  posi- 
tion have  already  been  pointed  out.^**  They  were  not  considered 
by  the  court. 

TITLE  II. 
THE  CREATION  OF  REMAINDERS. 

§  307.  Several  points  w^hich  have  been  passed  upon:  "•  The 
first  inquiry  concerning  the  creation  of  remainders  may  well  be: 
By  what  form  of  conveyance  may  they  be  created  today  in  Illi- 
nois?   Since  the  law  of  remainders  goes  back  to  the  feudal  period 

7  Hempstead    v.    Dickson,    20    111.  i-' 0.  B.  N.  S.  3:^8  (1857)  ;  Kales' 

193;    Kaniorer  r.   Kanicror,  281  111.  Cases   on   Future   Interests,   111. 

r)87     (reversions    defeasible    by    the  i*  Benson  r.  Tanner,  276  111.  .'594; 

vesting    of    contingent    remainder)  ;  Kamerer  v.  Kamerer,  281  111.  587. 

Dinsmoor  v.  Rowse,  200  111.  555.  ^^  A7ite,  §95. 

»Post,  §311.  in  In   Riokner  v.   Kessler,    138   111 

«  Post,  §  379.  636,  where,  by  one  .clause  of  a  will, 

^0  Ante,  §  170  et  seq.  A  got  a  life  estate,  and  by  a  later 

11178  111.  357;  ante,  §176.  clause    the    same    property    was    de- 

12  184  111.  136;   ante,  §176.  vised  to  B  in  fee,  B 's  interest  was 

For  another  problem  of  the  same  a  remainder. 

sort    see    Pinkney    v.    Weaver,    216 

111.  185. 

Kales  Fut.  Int. — 21  32I 


§  307]  FUTURE   INTERESTS  [^^-  ^^ 

of  English  history,  remainders  must  originally  have  been  created 
by  feoffment  or  some  other  purely  common  law  mode  of  con- 
veyance. Today,  however,  our  conveyances  in  this  state  operate 
under  the  Statutes  of  Uses  ^  "^  and  Wills,  and  under  such  modern 
conveyancing  acts  as  those  of  1827  ^*  and  1872.^^  These  modern 
forms  are  as  effective  as  feoffment  to  create  future  interests  by 
way  of  remainder.20 

The  rule  that  a  fee  cannot  be  limited  upon  a  fee  by  way  of 
remainder  21  is  correct  as  far  as  it  goes.  A  remainder  was  the 
future  interest  after  a  particular  estate  of  freehold  created  by 
acts  of  the  parties  which  the  feudal  land  law  allowed.  It  was 
permitted  by  that  law  only  if  it  stood  ready  throughout  its 
continuance  to  take  effect  in  possession  whenever  and  however 
the  preceding  estate  determined,  or  became  so  prior  to  the  ter- 
mination of  the  preceding  estate  of  freehold.-^  A  shifting  future 
interest  cutting  short  a  prior  interest  was  not  permitted  by  the 
feudal  land  law.^^  To  say,  then,  that  there  cannot  be  a  fee 
mounted  on  a  fee  by  way  of  remainder,  is  to  say  that  the  second 
fee  cannot  be  a  remainder  because  it  does  not  fall  within  the 
feudal  definition  of  a  remainder  and  because  the  feudal  land 
law  did  not  permit  shifting  future  interests  at  all.  To  say, 
therefore,  that  a  fee  cannot  be  limited  after  a  fee  by  way  of 
remainder  does  not  at  all  mean  that  you  cannot  have  a  fee 
mounted  upon  a  fee  by  way  of  executory  devise  or  shifting  use.^* 

i-!  Post,  §456.  650;  Smith  v.  Kimbell,  153  111.  368, 

18  Post,  §§457,  458.  372.    See    also    Seymour   v.    Bowles, 

19  Id.  172  lU.  521  and  Green  v.  Hewitt,  97 

20  In  the  following  cases  the  re-       111.  113. 

mainder  was  created  by  a  convey-  In  a  number  of  cases  the  court 
ance  to  uses  raised  on  transmuta-  seems  to  have  stated  the  same  doc- 
tion  of  possession:  O'Melia  v.  Mul-  trine  less  accurately  by  saying  that 
larky,  124  111.  506;  Both  v.  Mich-  a  fee  could  not  be  "mounted  upon 
alis,  125  111.  325;  Barclay  v.  Piatt,  a  fee  by  deed."  Seigwald  v.  Sieg- 
170  111.  384.  wald,  37  111.  430,  438;  Glover  v. 
In  Freeman  v.  Freeman,  274  111.  Condell,  163  111.  566,  592;  Strain  i;. 
228,  the  mere  recital  in  an  ante-  Sweeny,  163  111.  603,  605;  Kron  v. 
nuptial  contract  of  what  was  to  be  Kron,  195  111.  181;  Stewart  v.  Stew- 
done  for  the  wife 's  children  was  art,  186  111.  60. 
not  sufficient  to  create  a  remainder.  ^^  Ante,  §§28,  77,  85,  97. 

21  City  of  Peoria  v.  Darst,  101  111.  23  Ante,  §  26. 

609;  McCampbell  v.  Mason,  151  111.  2*  Ante,  §§  72,  85;  post,  §§443  et 

500;   Palmer  v.  Cook,  159  111.  300;       seq.,  467. 
Summers    v.    Smith,    127    111.    645, 

322 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§308 

It  has  often  been  correctly  said  that  two  contingent  remainders 
in  fee,  one  to  take  effect  if  the  other  does  not,  can  be  properly 
limited.-'" 

It  does  not  seem  probable  that  our  Supreme  Court,  in  King- 
man V.  Harmon,^'^  meant  so  far  to  overturn  the  common  law 
definition  of  remainders,27  r^^  to  hold  that  a  contingent  future 
interest  after  a  term  for  years  should  be  called  a  contingent 
remainder.  The  future  interest  in  that  case  must,  if  contingent, 
be  sustained  as  a  springing  executory  devise.^s 

The  general  rule  of  the  common  law  that  the  feoffor  could 
limit  no  estate  to  himself  20  seems  to  have  been  so  far  abrogated 
in  this  state  by  the  act  of  1827  concerning  conveyances,  if  not 
also  by  construing  deeds  to  be  bargains  and  sales  under  the 
Statute  of  Uses,3<'  that  one  may  now  convey  a  fee  simple  reserv- 
ing to  himself  a  life  estate.^^  Why,  then,  may  he  not  limit  a  life 
estate  by  deed  to  third  party  with  a  remainder  in  fee  to  himself? 

TITLE  III. 

REMAINDERS  WHICH  AS  CREATED  ARE  CERTAIN  TO  TAKE 
EFFECT  BECAUSE  THEY  ARE  NOT  LIMITED  IN  DURATION  OR 
DEFEASIBLE  ON  ANY  EVENT  EXPRESSED,  AND  WHICH  STAND 
READY  TO  TAKE  EFFECT  IN  POSSESSION  WHENEVER  AND 
HOWEVER  THE  PRECEDING  PARTICULAR  ESTATE  OF  FREE- 
HOLD DETERMINES  32  _  COMMONLY  CALLED  VESTED  RE- 
MAINDERS.33 

§  308.  Examples  of  such  remainders— They  are  valid,  in- 
destructible and  alienable:    In  Illinois  as  elsewhere  the  plainest 

25  City    of    Peoria    v.    Darst,    101  Moore,    687;     1    Gray's    Cases    on 

111.  609;  McCampbell  v.  Mason,  151  Prop.,  2nd  ed.  386. 

111.    500 ;    Furnish    v.    Rogers,    154  3o  Post,  §  456. 

111.  569.    Cf.  Boatman  v.  Boatman,  3i  Post,  §§  463-466. 

198  111.  414  and  Chapin  v.  Nott,  203  ^'^  Anie,  §§  25,  29. 

111.    341;    post,    §§365,    366.      Also  33  in  Brown  r.  Brown,  247  111.  528, 

Ruddell  I'.  Wren,  208  111.  508;  post,  532,  Mr.   Justice   Cartwright  adopts 

§  367.      Also   Butterfield   1;.   Sawyer,  this  definition  of  a  vested  remainder. 

187  111.  598.  In  Carter  v.  Carter,  234  111.  507,  511, 

20  131  111.  171.  Mr.  Justice  Dunn  puts  very  clearly 

27  Allen    V.    McFarland,    150    111.  the  common  law  distinction  between 

455    464.  vested    and    contingent    remainders. 

-fi  Post,  §§467  et  scq.  See    also    Lachenmyer    r.    Gehlbach, 

29  Post,  §463;  Callard  v.  Callard,  266   111.    11,    19;    Smith    v.   Chester, 

323 


§308] 


FUTURE  INTERESTS 


[Ch.  XV 


case  of  such  a  remainder  is  where  the  limitations  are  to  A  for 
life,  remainder  to  B  and  his  heirs  with  no  gift  over.^*  In  the 
case  of  a  remainder  to  a  class — as  to  A  for  life,  remainder  to  the 
children  of  A — the  remainder  vests  as  soon  as  any  child  is 
born.^''  Trne,  the  remainder  is  said  to  be  vested  subject  to  open 
and  let  in  other  members  of  the  class  so  that  the  share  of  each 
remainderman  may  be  divested  in  part.  To  this  extent  the 
remainder  is  not  indefeasible,  yet  the  remainder  to  the  class  as 
a  whole  is  not  subject  to  be  divested  by  any  express  gift  over. 
For  that  reason  the  remainder  to  a  class  without  any  further 
gift  over  has  been  classified  here  with  remainders  which  are 
vested  and  indefeasible.  The  validity  and  indestructibility  of 
vested  and  indefeasible  remainders  are  unciuestioned.^*'  These 
attributes  have  come  down  to  our  law  from  the  feudal  land  law.'"*^ 
Such  remainders  are  transferable  by  any  mode  of  conveyance  by 
operation  of  law  or  by  act  of  the  parties  appropriate  for  the 
passing  of  title  to  real  estate."^  Attornment  by  the  tenant  in 
possession  is  no  longer  necessary  to  the  validity  of  the  con- 
veyance.^^ 


272    111.   428,   437;    Northern   Trust 
Co.  V.  Wheaton,  249  111.  606,  612. 

34  Brown  v.  Brown,  247  111.  528; 
Drake  v.  Steele,  242  111.  .301;  Dead- 
man  V.  Yantis,  230  111.  243 ;  Marvin 
V.  Ledwith,  111  111.  144;  Knight  v. 
Pottgeiser,  176  111.  368;  Green  v. 
Hewitt,  97  111.  113;  Clark  v.  Shaw- 
en,  190  111.  47;  Rickner  v.  Kessler, 
138  111.  636;  see  also  Vestal  v.  Gar- 
rett, 197  111.  398;  Nicoll  v.  Scott, 
99  111.  529,  548;  Springer  v.  Savage, 
143  111.  301;  O'Mclia  v.  Mullarky, 
124  111.  506,  509;  Barclay  v.  Piatt, 
170  111.  384. 

35  Carter  v.  Carter,  234  111.  507; 
Thomas  v.  Thomas,  247  111.  543. 
Observe,  however,  Meldahl  v.  Wall- 
ace,  270   111.   220;    also   post,   §  353r 

3G  Hull  V.  Hull,  286  111.  75. 

"'~  Ante,  §  25, 

38  They  are  subject  to  sale  on  ex- 


ecution and  attachment :  Eailsback 
V.  Lovejoy,  116  111.  442;  Ducker  v. 
Burnham,  146  111.  9;  Brokaw  v. 
Ogle,  170  111.  115;  Springer  v.  Sav- 
age, 143  111.  301,  304,  sembJe. 

They  may  be  conveyed  by  the 
usual  quit  claim  deed:  Boatman  v. 
Boatman,  198  111.  414. 

They  pass  by  guardian's  deed. 
If  the  remainder  is  to  a  class  sub- 
ject to  open  and  let  in  others,  the 
guardian's  deed  will  pass  the  inter- 
est of  those  in  esse  when  the  sale 
occurs:  Moore  v.  Eeddel,  259  111. 
36;  Hill  V.  Hill,  264  111.  219  (first 
opinion  of  the  court  holding  the  re- 
mainder vested,  not  published).  But 
it  does  not  pass  the  interests  of 
afterborn  members  of  the  class: 
Hill  V.  Hill,  supra  (unpublished 
oijinion). 

39  Post,  §  379. 


324 


Ch.  XV]  REVERSIONS   AND    REMAINDERS  [§309 

TITLE    IV. 

REMAINDERS  LIMITED  TO  TAKE  EFFECT  UPON  AN  EVENT 
EXPRESSED  AS  A  CONDITION  PRCEDENT  IN  FORM,  WHICH 
MAY  HAPPEN  BEFORE  OR  AFTER  OR  AT  THE  TIME  OF  OR 
AFTER  THE  TERMINATION  (WHENEVER  OR  IN  WHATEVER 
MANNER)  OF  THE  PRECEDING  PARTICULAR  ESTATE  OF  FREE 
HOLD— COMMONLY  CALLED   CONTINGENT   REMAINDERS. 

§309.  Examples  of  conting"ent  remainders:  A  remainder 
to  an  unborn  })erson  is  necessarily  limited  on  an  event  which 
may  happen  before  or  after,  or  at  or  after,  the  termination  of 
the  particular  estate.  It  is  a  contingent  renminder,-***  destruc- 
tible and  in  the  nature  of  things  inalienable.  The  remainder  to 
the  "heirs"  of  a  living  person  is  a  contingent  remainder  and 
inalienable  inter  vivos  and  destroyed  by  the  termination  of  the 
life  estate  before  the  death  of  the  ancestor  whose  heirs  are  to 
take  in  remainder.^^  This  was  in  fact  the  case,  decided  about 
1430,  where  the  contingent  remainder  was  for  the  first  time 
recognized  and  given  a  sort  of  conditional  validity."*-  A  re- 
mainder to  the  "heirs  of  the  body"  of  the  life  tenant  (the  rule 
in  Shelley's  case  not  applying)  is  a  contingent  remainder,  de- 
structible ^'^  and  inalienable,  especially  by  execution  sale,^-*  and 

^oMcCanipbell  v.  Mason,  151  111.  r.  Jacobs,  74  Ky.  (11  Bush.)  646; 
500;  Pinkney  v.  Weaver,  216  111.  Hall  v.  LaFrance  Fire  Engine  Co., 
185;  Lewin  v.  BeW,  285  111.  227;  158  N.  Y.  570;  McCampbell  v.  Ma- 
post,   §404.  son,   151   111.   500;    Aetna  Life   Ins. 

41  Williams,   Real  Prop.,   17th   ed.  Co.  v.  Hoppin,  249  111.  406;   id.,  214 

411,    notes     (d)     and     (e)  ;     Digby,  Fed.  928. 
Hist,  of  the  Law  of  Real  Prop.,  4th  *- Anie,  S  28. 

ed.   264-269    (translating  case   from  "Archer's     Case,     1      Co.     66b; 

Year      Books      antedating      1568);  Kales'    Cases   on    Future    Interests, 

Feame,   Contingent   Remainders,  9;  98;     Bennett     r.    Morris,    5    Rawle 

Challis,    Real    Prop.,    2nd    ed.    120;  (Pa.)  9;  Benson  v.  Tanner,  276  111. 

Boraston's    Case,    3    Co.    19a,    20b;  594.     In   Moore   v.   Reddcl,   259  111. 

Irving  V.  Newlin,  63  Miss.  192.     See  36,  the  court  assumed  that  the  rule 

also  Bayley  v.  Morris,  4  Ves.   788;  in    Shelley's   Case   applied.      It   fol- 

Frogmorton     r.    Wharrey,     2     Wm.  lowed  that   the  life  tenant   took  an 

Black.  Rep.  728;  Mudge  v.  Hammill,  esta^te  tail  which  the  Statute  on  Eu- 

21  R.  I.  283 ;   Hanna  v.  Hawes,  45  tails'  turned  into  a  life  estate  in  the 

la.  437,  440;  Thurston  v.  Thurston,  first   taker  and  a  remainder  to  his 

6  R.  I.   296,  300;   Jarvis   v.  Wyatt,  "children"    indofeasibly    vested    in 

4  Hawks.   (N.  C.)   227;   Lemacks  v.  each    ihild    upon    birth.     Post,    SS 

Glover,    1    Rich.    Eq.    (S.    C.)     141;  405,   406. 

Tucker  v.  Adams,  14  Ga.  548;  Shar-  **  Aetna  Life  Ins.  Co.  v.  Hoppin, 

man  v.  Jackson,  30  Ga.  224  ;  Johnson  249  111.  406;    iiL,  214   Fed.   92S. 

325 


§  309]  FUTURE   INTERESTS  [Ch.  XV 

the  contingent  remainderman  ma}'  be  bound  by  a  decree  in 
chancery  by  representation.-*^  The  heirs  of  the  body  of  a  life 
tenant  cannot  be  ascertained  till  the  life  tenant's  death  because 
till  then  he  cannot  have  any  heirs.  This  event  may  not  occur 
until  after  the  termination  of  the  life  estate  by  forfeiture  or 
merger.  A  remainder  limited  to  the  person  or  persons  who 
would  have  answered  the  description  of  the  testator's  heirs  if 
the  testator  had  died  at  the  time  of  the  death  of  the  life  tenant 
is  the  same  as  a  remainder  to  the  heirs  at  law  of  a  living  person. 
It  is  a  contingent  remainder  and  destructible.'*'^  A  remainder 
limited  to  an  ascertained  person  upon  a  collateral  contingency 
such  as  that  the  life  tenant  die  without  leaving  children  or  issue 
is  a  contingent  remainder  "^"^  and  inalienable  ^*  and  destruc- 
tible.^^ The  life  tenant  cannot  die  without  issue  him  surviving 
until  his  actual  death  occurs.  This  may  occur  after  the  termina- 
tion of  the  life  estate.  If  a  remainder  be  limited  to  the  children 
of  the  life  tenant  w^lio  reach  the  age  of  twenty-one,  the  remainder 
is  contingent  ^°  and  destructible. ^^  Again,  the  event  of  the 
children  reaching  twenty-one  might  occur  after  the  termination 
of  the  life  estate  by  the  death  of  the  life  tenant.  Perhaps  the 
commonest  example  of  a  contingent  remainder  is  where  after  a 
life  estate  an  interest  is  limited  to  individuals,  or  to  a  class, 
provided  they  survive  the  life  tenant.^^     The  survivorship  some- 

45  Mc Campbell  v.  Mason,  151  111.  dington  v.  Kime,  1  Salk.  224;  Pure- 
500.  foy  V.  Rogers,  2  Saund.  380;   Eger- 

46  Bond    V.    Moore,    236   111.    576,  ton  v.  Massey,  3  C.  B.  N.  S.  338. 
semble    (remainder    here    was    also  so  Quinlan  v.  Wickman,  233  111.  39. 
subject   to   a  collateral  contingency  si  Festing  v.  Allen,  12  Mees.  &  W. 
that  the  life  tenant  should  die  with-  279;  Rhodes  v.  Whitehead,  2  Dr.  & 
out  leaving  children).  Sm.  532;  White  v.  Summers  [1908] 

47  Walton  V.   Follansbee,   131   111.  2  Ch.  256;  Pitzel  v.  Schneider,  216 
147;   Kamerer  v.  Kamerer,  281  111.  111.  87. 

587.  52  Doe   v.   Scudamore,   2   B.   &   P. 

4SOolladay  v.  Knock,  235  111.  412;  289;    Abbott  v.  Jenkins,  10  Serg.  & 

Watson    V.    Dodd,    68    N.    C.    528;  R.    (Pa.)    296;    Belding   v.   Parsons, 

id.,    72    N.    C.    240.      Boatman    v.  258   111.  422;    Barr  v.  Gardner,   259 

Boatman,    198    111.   414   and   Chapin  111.  256;  Messer  v.  Baldwin,  262  111. 

r.     Nott,     203     111.     341,     are     in  48;   Smith  v.  Chester,  272  111.  428 

terms     overruled     by     Golladay     v.  Blakeley  v.  Mansfield,  274  111.  133 

Knock,  supra,  so  far  as   they  hold  Kamerer  v.  Kamerer,  281  111.  587 

the  contrary.     Post,  §  358.  Mittel  v.  Karl,  133  111.   65 ;   Temple 

49  Bond   V.    Moore,    236    111.    576;  v.    Scott,    143    111.    290;    Phayer    v. 

Plunket  V.  Holmes,  1  Lev.  11;   Lod-  Kennedy,   169   111.   360;    Madison   v. 

326 


Cli.  XV]  REVERSIONS    AND    REMAINDERS  [§^11 

times  is  of  one  other  than  the  life  tenant.''''  Such  remainders 
are  inalienable  on  sale  by  execution.'**  They  are  also  destruc- 
tible.^^ Where  two  remainders  were  limited  to  the  children  of 
the  life  tenant,  one  on  the  contingency  tiiat  tlie  life  tenant  sur- 
vive the  husband,  and  the  other  on  the  contingency  that  she  did 
not  survive  her  husband,  both  remainders  were  contingent  and 
neither  was  alienable  by  a  quit  claim  deed,  even  though  it  con- 
tained covenants  of  warranty. '''' 

Topic  1. 
Rule  of  Destructibility  op  Contingent  Remainders, 

§  310.  This  rule  in  force  in  Illinois:  Since  Bond  v.  Moore;''' 
there  have  been  a  number  of  cases  in  which  the  common  law 
rule  of  destructibility  of  contingent  remainders  has  been  ap- 
plied.^** 

§  311.  Method  of  operation  of  the  rule  by  the  premature 
destruction  of  the  life  estate  by  merger:  Where  the  life  estate 
and  the  reversion  were  originally  in  different  persons  but  both 
came  into  the  hands  of  the  same  party  by  conveyance,  a  merger 
occurred  and  the  life  estate  was  prematurely  terminated.^  ^ 
Where,  however,  the  life  tenant  took  a  life  estate  under  a  will 
and  at  once  upon  the  death  of  the  testator  became  invested  with 
the  reversion  in  fee  by  descent  or  by  virtue  of  the  residuary 
clause  of  the  will  pending  the  taking  effect  of  the  contingent 

Larmon,    170    111.    65;    Spengler    i;.  58  Belding    v.    Parsons,    258    111. 

Kuhn,    212    111.    186;    Robertson    v.  422;  Barr  v.  Gardner,  259  111.  256 

Guenther,    241    111.    511;    Collins    v.  Messer    v.    Baldwin,    262    111,    48 

Sanitary  Dist.,  270  111.  108.  Smith     v.     Chester,     272     111.     428 

53  Price  V.  Hall,  L.  R.  5  Eq.  399;  Blakeley  v.  Mansfield,  274  111.  133 

Cunliffe  v.  Brancker,  3  Ch.  Div.  393.  Benson    v.    Tanner,    276    111.    594 

6*  Taylor  v.  Taylor,  118  la.  407;  Kamerer   v.  Kamerer,  281  111.  587 

Young  V.  Young,  89  Va.  675 ;  Nich-  Friedman  v.  Friedman,  283  111.  383 

ols  V.  Guthrie,  109  Tenn.  535;  Hen-  MeCarty  v.   McCarty,  284   111.   196 

derson  v.  Hill,  77  Tenn.  26;  Round-  Spatz  v.  Paulus,  285  111.  82;  Lewin 

tree  v.  Roundtree,  26  S.  C.  450,  471.  v.  Bell,  285  111.  227.    See  also  Klein- 

56  Friedman  v.  Friedman,  283  111.  bans  v.  Kleinhans,  253  111.  620  and 

383;   McCarty  v.  McCarty,  284  111.  comments,   post,    §347. 

196;  Spatz  v.  Paulus,  285  111,  82,  59  See   Illinois  cases   cited   supra, 

56  Blanchard  v.  Brooks,  12  Pick.  note  58;  also  Craig  v.  "Warner,  5 
(Mass.)  47.  Mackey  (D.  C.)   460;  Archer  r.  Ja- 

57  236  lU.  576.  cobs,  125  la.  467. 

327 


§312]  FUTURE   INTERESTS  [Ch.  XV 

remainder,  there  was  no  merger  of  the  life  estate  in  the  re- 
version.'^'^ In  such  eases  the  merger  occurred  when  the  one  who 
was  both  life  tenant  and  reversioner  conveyed  to  a  third  party 
both  the  life  estate  and  the  reversion.*"'^  There  can  be  no  merger 
of  the  life  estate  in  any  contingent  remainder.  Hence,  a  tranfser 
by  a  remote  contingent  remainderman  to  the  life  tenant  does 
not  destroy  the  life  estate.''-  So  the  transfer  of  a  life  estate 
to  a  contingent  remainderman  does  not  destroy  the  life  estate.^^ 

§  312.  By  forfeiture  of  the  life  estate :  There  have  been 
a  considerable  number  of  cases  in  the  United  States  where  the 
life  estate  was  terminated  prematurely  by  forfeiture  by  the 
tortious  feoffment  or  common  recovery  of  the  life  tenant.*'^  No 
reason  is  perceived  why  in  Illinois  a  tortious  feoffment  may  not 
be  made  by  a  life  tenant.  There  is  no  impediment  to  making 
livery  of  seisin  if  the  life  tenant  wants  to  do  so.  It  has  been 
said  that  livery  of  seisin  has  been  abolished,*'^  but  the  fact 
is  it  has  only  been  made  iinnecessary  by  Section  1  of  the  Act 
on  Conveyancing,^'^  which  is  quite  different  from  its  being 
abolished. 

§  313.  By  the  expiration  of  the  life  estate  in  due  course 
before  the  happening  of  the  event  upon  w^hich  the  contingent 
remainder  is  to  vest:  Thus,  w-here  the  limitations  are  legal 
estates  to  A  for  life  Avith  remainder  to  B  if  he  survive  C,  or 
are  contingent  upon  his  attaining  the  age  of  twenty-one,  if  A 
dies  before  C  or  before  B  has  attained  twenty-one,  as  the  case 

60  Plunket  v.  Holmes,  1   Lev.   11,  40  N.  H.  498  and  McCreary  v.  Cog- 
sembJe;  Egerton  v.  Massey,  3  C.  B.  geshall,  74  S.  C.  42.  > 
N.  S.  338;  ChalUs  on  Real  Property,           C2  Stewart  v.   Neely,   139   Pa,   St. 
2n(l  ed.  126;  Fearne  on  Contingent  309. 

Remainders,  341  et  seq.;  3  Preston  «3  Cummings  v.  Hamilton,  220  111. 

on   Conveyancing,   3rd   ed.   51,   388,  480. 

491;    Bennett    v.   Morris,    5    Rawle  64  Faber  v.  Police,   10   S.   C.    (10 

(Pa.)    9;    Bond  v.   Moore,   236   111.  Rich.)    376;    McElwee    v.    Wheeler, 

576;  Benson  v.  Tanner,  276  111.  594.  10  S.  C.  (10  Rich.)  392;  Waddell  v. 

See  also  Kellett  v.  Shepard,  139  111.  Rattew,  5  Rawle  (Pa.)   231;   Stump 

433.  V.    Findlay,    2    Rawle     (Pa.)     168; 

61  Egerton  v.  Massey,  supra;  Lyle  v.  Richards,  9  Serg.  &  R.  (Pa.) 
Bennett  v.  Morris,  supra;  Bond  v.  322;  Redfern  v.  Middleton,  Rice,  L. 
Moore,  supra;  Belding  v.  Parsons,  (S.  C.)  459;  Abbott  v.  Jenkins,  10 
supra;  Benson  v.  Tanner,  supra;   3  Serg.  &  R.  296. 

Preston    on    Conveyancing,    3rd    ed.  6r,  Post,  §  453. 

489.     But  see   Dennett  v.  Dennett,  66  r.  s.  1874,  Ch.  30,  §  1. 

328 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§316 

may  be,  the  eontingent  remainder  would  be  destroyed."'^  Sucli 
a  case  has  not  yet  arisen  in  this  state  but  it  is  to  be  expeeted 
at  any  time. 

^  314.  The  partial  destruction  of  a  contingent  remainder 
occurs  where  the  life  estate  terminates  before  the  contingency 
happens  as  to  an  undivided  interest  only:  Suppose  the  life 
estate  and  an  undivided  lialf  of  the  reversion  unite  in  one 
person.  A  merger  thereupon  occurs  as  to  an  undivided  one- 
half,  and  the  life  estate  is  destroyed  in  that  half.*^^  The  con- 
tingent remainder  is  thereupon  destroyed  in  an  undivided  half 
of  the  property.''" 

j;  315.  Where  the  remainder  is  to  a  class  and  has  vested  in 
one  or  more  members  of  the  class  before  the  termination  of 
the  life  estate,  the  rule  of  destructibility  does  not  apply  to  the 
interests  of  the  other  members  of  the  class:  Thus,  if  the 
limitations  be  to  A  for  life,  remainder  to  such  cliildren  of  .1 
as  reach  twenty-one,  and  at  ^l',s  death  one  child  has  reached 
twenty-one  and  there  are  others  who  have  not,  the  latter,  it  is 
submitted,  may  share  on  reaching  twenty-one."^  This  point 
has  not  been  passed  upon  in  this  state  as  yet,  but  the  case 
is  likely  to  arise  at  any  time.  The  argument  in  support  of  the 
interests  of  those  who  were  not  twenty-one  when  the  life  tenant 
died  has  been  set  forth,  ante,  §§  100-103.  It  should  be  observed, 
however,  that  the  remainder  cannot  be  saved  consistently  with 
the  rule  of  destructibility  where  none  of  the  children  have 
reached  twenty-one  before  the  termination  of  A's  life  estate.'^ 

§  316.  The  rule  of  destructibility  does  not  apply  where  the 
interests  are  equitable:  This  is  the  explanation  of  Pinkueij 
V.  Weaver.'-  There  the  deed  as  construed  by  the  court  limited 
a  life  estate  to  A  with  a  contingent  remainder  to  her  children  if 
they  reached  twenty-one.  There  was  a  reversion  in  the  grantor 
which  descended  to  his  heirs,  who  conveyed  to  A.  This  would 
have  terminated  the  life  estate  by  merger  and  destroyed  the 

>>T  Ante,  ^98.  -'>A)iic,    §§100-103;     Simoiuls     r. 

C8  3  Preston  on  Conveyanoing,  3r(l       Sinionds,  199  Mass.  552. 
ed.    89;    Wiseot's   Case,   2   Co.   Rep.  '■^  Ante,  §99. 

60;  Lewin  v.  Bell,  285  111.  227.  '-216  111.  185. 

c9  Crump  f.  Xorwood,  7  Taunt. 
362;  Craig  v.  Warner,  5  Mack.  (D. 
C.)  460;  Fearne,  C.  R.  310. 

329 


§  317]  FUTURE   INTERESTS  [Ch.  XV 

contingent  remainder  had  the  estates  been  legal.  The  fee,  how- 
ever, was  at  all  times  subject  to  a  mortgage.  Hence,  the  in- 
terests were  equitable  and  no  rule  of  destruetibility  applied.'^^ 

§  317.  The  rule  of  destruetibility  appears  not  to  be  called 
into  operation  when  the  widow  having  a  life  estate  by  will 
renounces:  This  appears  to  be  the  ruling  in  Wakefield  v. 
Wakefield.'^  There  the  widow,  as  life  tenant,  renounced  and 
thereupon  a  bill  was  filed  to  appoint  a  trustee  to  take  charge  of 
her  life  estate  till  her  death  and  this  was  done.  The  life  estate 
was,  therefore,  continued  in  a  trustee  to  preserve  contingent 
remainders.  In  a  subsequent  partition  suit  such  a  decree  was 
held  not  to  be  open  to  collateral  attack.  The  court  in  its  opinion, 
however,  seems  to  go  farther  and  to  hold  that  is  was  a  proper 
decree.  If  the  renunciation  by  the  widow  means  that  she 
never  took  a  life  estate,  then  it  is  the  same  as  if  the  widow  had 
died  before  the  testator.  In  that  case,  the  so-called  contingent 
remainder  would  not  be  a  remainder  at  all  but  would  take 
effect  from  the  beginning  as  a  springing  executory  devise  and 
as  such  would  not  be  subject  to  any  rule  of  destruetibility.'^^ 

§  318.  Does  the  rule  of  destruetibility  apply  to  the  statutory 
remainder  created  by  the  Statute  on  Fntails:  In  Frazcr  v. 
Board  of  Supervisors,'^^  the  limitations  involved  were  created 
by  deed  and  ran  to  A  and  the  heirs  of  her  body.  By  the  Statute 
on  Entails  '^^  this  gave  A  a  life  estate  with  a  remainder  in  fee 
to  her  lineal  heirs.  At  least  before  any  children  were  born,  this 
last  was  a  contingent  remainder,'^^  which,  according  to  the 
general  rule,  would  fail  if  it  did  not  vest  before  or  at  the  time 
of  the  termination  of  the  particular  estate.  Before  any  children 
were  born  to  A  she  reconveyed  to  the  grantor  in  whom  the  re- 
version in  fee  stood,  pending  the  vesting  of  the  contingent  future 
interest.  Thereupon  the  life  estate  certainly  determined  by 
merger.'^^  It  was  held,  however,  that  the  interest  of  any  child 
that  might  be  born  to  A  and  survive  her,  was  not  destroyed. 
This  was  put  upon  the  ground  that  the  future  interest  was 
created  by  statute  and  hence  to  cause  its  destruction  would 

73Astley  V.  Micklethwait,  15  Ch.  "^  R.  S.  1874,   Ch.   30,   §6;    post, 

Div.  59.  §§  402  et  seq. 

74  256  111.  296.  ■^s  Post,  §  404. 

75  Post,   §  483.  ■'»  Ante,  §  311. 

76  74  111.  282. 

330 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§319 

be  to  defeat  the  intention  of  the  legislature.^"     It  would  seem, 
however,  as  if  the  Illinois  Statute  on  Entails  was  fully  effective, 
and  that  the  legislature  had  fully  accomplished  its  purpose, 
when  it  created  the  future  interest.     Thereafter  the  estate  of 
the  unborn  lineal  heirs  should  be  left  to  the  mercy  of  the  usual 
rules  of  law.    Would  anyone,  for  instance,  contend  that,  simply 
because  it  was  created  by  statute,  it  could  not  be  void  for  re- 
moteness if  the  Rule  against  Perpetuities  applied  generally  to 
contingent  remainders,  or  that  it  could  not  be  void  as  violating 
the  rule  against  double  possibilities,   if  that  existed?  ^i     Re- 
cently in  Lewin  v.  Bell  ^-  the  contingent  remainder  in  unborn 
children  of  the  tenant  in  tail  created  by  the  statute  was  held 
to  be  destroyed  by  the  merger  of  the  life  estate  in  the  reversion. 
§  319.     Methods  of  securing:  an  adjudication  that  a  con- 
tingent remainder  has  been  destroyed:     This  is  important  in 
order  that  a  title  may  be  cleared.    In  Bond  v.  Moore  ^3  a  Torrens 
petition  was  filed  in  Cook  County  to  determine  the  ownership 
in  fee  after  the  contingent  remainder  had  been  destroyed.     A 
bill  for  partition  would  seem  to  be  unassailable,  and  advisable 
in  order  to  give  the  court  jurisdiction.^-^    A  proceeding  under 
the  burnt  record  statute  would  be  efficacious  where  that  is  avail- 
able.    A  bill  for  specific  performance  is  always  precarious  be- 
cause the  issue  is  whether  the  title  is  merchantable  and  specific 
performance  may  be  refused  where  there  are  difficulties  with 
the  title  on  the  ground  that  the  title  is  not  merchantable  and 
the  court  may  not  at  all  pass  upon  the  merits  of  the  difficulties. 
However,  in  Benson  v.  Tanner,^^  the  court  sustained  a  decree 
of  specific  performance,  although  the  difficulties  and  doubts  as 
to  whether  the  contingent  remainder  was  destroyed  were  con- 
siderable.s*^     If  there  is  a  real  difficulty  concerning  the  con- 
so  In  Bond  v.  Moore,  236  111.  576,       conveyance    cut    off    the    contingent 
the     result    reached     in    Frazer     v.       remainder,  and  it  was  correctly  held 
Board   of   Supervisors,   74   111.    282,       that  it  did  not." 
was   sustained   on   the   ground   that  82  285  111.  227. 

the  remainder   was  created   by   the  ^3  236  111.  576. 

Statute  on  Entails.  ^*  McCarty    v.    McCarty,    284    111. 

81  In  Petersen  v.  Jackson,  196  111.       196. 
40,    51,    the    court    in    commenting  85  276  111.  594. 

upon    Frazer    v.    Board    of    Super-  8"  As  to  these  diflaculties  see  ante, 

visors    said:       "The    question    was       §306;    post,   §428. 
whether  her   [the  life  tenant's]    re- 

331 


§  319]  FUTURE    INTERESTS  [Cn.  XV 

struction  of  the  will  as  to  whether  the  remainder  is  vested  or 
contingent,  a  bill  may  be  filed  to  construe  the  will  under  the 
recent  statute  permitting  such  a  bill  even  where  legal  titles  are 
involved.^'  Incidentally,  the  decree  would  determine  whether 
if  the  remainder  was  contingent  it  was  destroyed.  Such  bills 
are  in  reality  bills  to  construe  and  quiet  title.^^ 

Suppose,  however,  that  the  will  is  perfectly  clear  or  suppose 
the  remainder  is  created  by  deed  so  that  no  case  for  a  bill  to 
construe  is  made.  Can  the  claimant  in  fee  who  insists  that  the 
contingent  remainders  have  been  destroyed  file  a  bill  to  remove 
the  contingent   remainders   as  a   cloud? 

It  has  long  been  settled  in  this  state  that  one  who  has  per- 
fected a  title  by  the  Statute  of  Limitations  against  the  former 
owner  under  the  record  title  may,  if  he  is  in  possession,  file  a 
bill  setting  up  the  limitation  title  and  asking  to  have  the  record 
title  removed  as  a  cloud  upon  his  new  limitation  title.^^  Why, 
then,  may  not  the  party  in  possession  w^ho  is  the  owner  in  fee 
by  reason  of  the  fact  that  a  contingent  remainder  or  contingent 
remainders  have  been  destroyed  by  the  premature  termination 
of  a  life  estate  by  merger,  maintain  his  bill  to  remove  as  a  cloud 
upon  his  title  so  much  of  a  written  instrument  of  record  as 
purports  to  create,  and  does  on  the  face  of  the  record  create, 
the  contingent  remainder  or  remainders?  In  such  a  case,  as 
well  as  where  a  limitation  title  is  involved,  events  have  occurred, 
since  the  deed  under  which  the  defendants  claim,  to  extinguish 
the  defendant's  title  or  claim  to  title.  In  both  cases  alike  an 
instrument  which  once  was  effective  to  create  a  valid  title  is 
now  ineffective.  In  both  cases  alike  the  deed  purporting  to 
create  the  adverse  interest  is  recorded  and  its  existence  is  ef- 
fective to  cause  actual  damage  to  the  indefeasible  title  in  fee 
which  is  claimed  by  the  plaintiff.  It  is  hardly  necessary  that 
the  holder  of  an  adverse  interest  actually  make  threats,  orally 
or  otherwise.  Indeed,  in  the  limitation  title  cases,  the  holder 
of  a  record  title  has  often   disappeared  and  been  defaulted. 

87  Laws  1911,  p.  25a  (R.  S.  1874,  City    of    Chicago    v.    Middlebrooke, 
Ch.  22,  §50,  as  amended  1911).  14.3  111.  265;  Gage  v.  Hampton,  127 

88  Smith  V.  Chester,  272  111.  428;  111.    87;    McDuffee    v.   Sinnott,    119 
Blakeley  v.  Mansfield,  274  111.  1.33.  111.  449;   Sharon  v.  Tucker,  144  U. 

89  Walker    v.    Converse,    148    111.  S.  533. 
622;  Harms  v.  Kransz,  167  111.  421; 

332 


ClI.  XV]  UKVERSIONS    AND    REMAINDERS  I  §  319 

There  is  still,  howevci',  this  difference  between  the  case  of  the 
limitation  title  and  that  where  contingent  remainders  are  in- 
volved: In  the  case  of  tlie  limitation  title  the  i-ecord  title  which 
is  extinguished  by  tiie  Statute  of  Limitations  must  be  sho\\Ti 
to  have  been  so  extinguished  by  evidence  outside  the  record  of 
the  title.  On  the  other  hand,  the  destruction  of  the  contingent 
remainders  will  appear  in  most  instances  from  the  record  of 
the  title  itself.  If,  therefore,  there  is  no  question  of  construc- 
tion— if  the  remainder  is  clearly  contingent — the  rule  of  de- 
structibility  is  clearly  applicable,  and  if  it  be  invoked  by  the 
application  of  the  doctrine  of  merger,  the  title  is  relieved  of 
the  contingent  n'mainder  as  appears  from  the  record  itself. 
The  filing  of  the  bill  may  therefore  be  regarded  as  improvident, 
bothering  the  courts  Avith  a  matter  Avhich  is  clear  enough  so 
that  lawyers  and  conveyancers  may  pass,  and  title  companies 
guarantee,  the  complainant 's  title  in  fee,  free  of  any  contingent 
remainders.  This  is  the  substance  of  the  holding  of  our  Su- 
preme Court  in  the  recent  case  of  McCarty  v.  McCariij.'^^  The 
logic  of  the  court  is  perfect.  Conveyancers  and  title  companies 
have,  however,  practically  only  begun  to  deal  with  the  doc- 
trine of  destructibility  since  the  case  of  Bond  v.  Moore.^^  They 
are  not  yet  ready  to  pass  or  guarantee  titles  where  a  contingent 
remainder  is  outstanding  which  it  is  claimed  has  been  destroyed 
by  the  doctrine  of  merger.  They  ought  to,  but  they  do  not. 
Hence,  the  practical  situation  is  that  the  title  is  damaged  by 
the  existence  of  record  of  the  instrument  creating  a  contingent 
remainder  which  may  possibly  vest,  and  the  holder  in  fee  who 
has  destroyed  the  contingent  remainder  is  subjected  to  what 
is  practically  a  cloud  on  his  title  and  has  no  way  of  getting 
rid  of  it  unless  it  so  happens  that  there  is  some  co-owner  of 
an  undivided  interest  against  whom  he  can  file  a  bill  for  par- 
tition, or  unless  the  land  be  situated  in  Cook  County,  where  he 
can  file  a  burnt  record  proceeding  or  apply  to  have  liis  title 
registered  under  the  Torrens  Act. 

In  Gavvin  v.  Carroll,^-  the  complainant  filed  a  bill  for  a 
decree  "declaring  title  to  the  land  in  fee  simple  in  complainant 
and  the  removal  of  clouds  therefrom."    He  claimed  title  under 

90  275  111.   573.     See  also  Warren  oi  236  111.  576. 

V.  "Warren,  279  111.  217,  to  the  same  02  276  111.  478. 

effect. 

333 


§  319]  FUTURE   INTERESTS  [Ch.  XV 

a  will  which  devised  the  land  to  him  iu  fee,  subject  to  an 
executory  devise  over,  "should  he  die  without  issue,"  to  the 
testator's  children  who  survived  the  complainant.  All  the  com- 
plainant's brothers  and  sisters  gave  him  warranty  deeds  and 
it  was  held  that  these  deeds,  with  the  warranties  which  they 
contained,  precluded  the  grantors  and  their  heirs  from  claiming 
the  land  in  question ;  and  hence  the  executory  devises  had  be- 
come extinguished,  or  at  least  could  never  take  effect  to  the 
detriment  of  the  complainant's  interest.  Under  these  circum- 
stances the  court  evidently  was  satisfied  to  entertain  a  bill  to 
remove  the  executory  devise  as  a  cloud,  although  (assuming 
the  warranty  deeds  to  have  been  recorded)  the  exact  state  of 
the  title  appeared  from  the  record  just  as  clearly  as  in  McCarty 
V.  McCarty.  Why,  then,  might  not  the  court  have  regarded  the 
bill  as  improvident,  because  any  conveyancer  knowing  the  law 
should  have  been  able  to  give  an  opinion  on  the  exact  state  of 
the  title  from  what  appeared  of  record.  The  answer  is  that  the 
state  of  our  knowledge  of  the  law  on  the  subject  is  not  so 
exact  as  to  prevent  the  title  from  being,  as  a  practical  matter, 
clouded  until  the  decree  of  a  court  of  competent  jurisdiction  had 
been  rendered.  That  is  precisely  the  ground  on  which  the 
jurisdiction  of  the  court  to  entertain  the  bill  in  McCarty  v. 
McCarty  might  have  been  rested. 

One  suggestion  of  the  Supreme  Court  in  McCarty  v.  McCarty 
is  ditficult  to  accept.  The  court  said :  »3  "  The  contingent  re- 
mainders limited  to  the  children  of  the  testator's  children  were 
not  estates  or  interests  in  the  land  and  would  never  become 
estates  or  interests  except  upon  the  happening  of  future  un- 
certain events,  and  courts  of  equity  do  not  generally  entertain 
suits  to  declare  the  rights  of  parties  on  a  state  of  facts  which 
has  not  yet  arisen  and  which  may  never  arise."  Here  we 
have  the  suggestion  that  the  mere  fact  that  the  contingent  re- 
mainder is  a  contingent  claim  which  may  never  vest  will  pre- 
clude a  bill  to  remove  it  as  a  cloud.  If  the  existence  of  a  pos- 
sible contingent  claim  which  can  have  no  validity  or  operation 
under  any  circumstances  damages  the  actual  title  in  fee,  the 
owner  thereof  ought  to  be  entitled  to  relief  in  equity  to  rid 
his  title  of  the  cloud.  It  is  not  a  case  where  the  parties  are 
attempting  to  secure  the  opinion  of  a  court  of  equity  as  to  the 

»3  275  IU.  573,  578. 

334 


Ch.  XV] 


REVERSIONS    AND   REMAINDERS 


§  320 


effect  of  an  instrument  under  future  possible  and  hypothetical 
circumstances  which  may  never  present  an  actual  case.  The 
effort  of  the  present  owner  in  fee  in  possession  is  to  secure  a 
decree  declaring  that  he  is  the  present  owner  in  fee  and  that 
there  is  no  possibility  of  that  title  being  disturbed  at  a  future 
time  by  the  vesting  of  a  contingent  future  interest  even  if  the 
events  upon  which  it  is  to  vest  do  happen. 

Topic  2. 

Inalienability  of  Legal  Contingent  Remainders. 

§  320.  Inalienable  by  conveyance  inter  vivos :  Legal  con- 
tingent remainders,  as  long  as  they  remain  contingent,  have 
always  been  inalienable  to  a  stranger."*  This  is  a  survival  of 
the  feudal  land  law.^^  It  makes  no  difference  that  the  convey- 
ance is  by  deed  under  the  Act  of  1827""  or  by  a  statutory  quit 
claim  deed  under  the  Act  of  1872  '*"  or  by  a  warranty  deed  "^ 
or  by  a  guardian's  deed.""  A  contingent  remainder  cannot  be 
transferred  by  execution  sale.^ 


9*  The  contingent  remainder  is,  of 
course,  releasable  to  the  reversioner. 
"Williams,  Eeal  Property,  17th  ed. 
422.  Since  Williams  i;.  Esten,  179 
111.  267,  273,  we  may  fairly  assume 
that  the  release  by  a  contingent  re- 
mainderman to  the  tenant  in  pos- 
session is  equally  valid. 

95  Ante,  §§  48,  82.  "A  contingent 
remainder,  such  as  appellants  had 
in  the  premises  *  »  »  does  not 
rise  to  the  dignity  of  an  estate  in 
the  land  and  confers  no  interest  in 
the  seisin.  Strictly  speaking  it  is 
not  an  estate  at  all,  but  a  mere 
chance  of  having  one  if  the  contin- 
gency turn  out  favorably  to  the  re- 
mainderman."  Mr.  Justice  Wilkin 
in  Butterfield  i'.  Sawyer,  187  111. 
598,  601,  602. 

96  R.  S.  1874,  Ch.  30,  §  1 ;  Walton 
V.  Follansbee,  131  111.  147,  159; 
O'Melia  v.  Mullarky,  124  111.  506 
(semble). 


97  R.  S.  1874,  Ch.  30,  §10;  Wil- 
liams V.  Esten,  179  111.  267  (here 
the  court  while  quoting  the  statute 
in  support  of  the  validity  of  the  con- 
veyance by  quit  claim  deed  of  a 
shifting  executory  devise  to  the 
holder  of  the  interest  in  possession 
seems  to  admit  that  a  deed  comply- 
ing with  the  same  statute  would  be 
insuflQcient  to  transfer  the  contin- 
gent remainder  to  a  stranger)  ; 
Boatman  v.  Boatman,  198  111.  414 
(here  the  court  assumes  that  if  the 
remainder  were  contingent  it  could 
not  possibly  pass  by  quit  claim 
deed). 

98Golladay  v.  Knock,  235  111. 
412. 

99  Furnish  r.  Rogers,  154  111.  569 ; 
Hill  V.  Hill,  264  111.  219;  Graff  v. 
Rankin,  250  Fed.  150. 

1  Haward  v.  Peavey,  128  111.  430; 
Ducker  v.  Burnham,  146  111.  9, 
semble;  Aetna  Life  Ins.  Co.  r.  Hop- 


335 


§  320a]  FUTURE   INTERESTS  [Ch.  XV 

§  320a.  Extinguishment  by  release :  Contingent  remainders 
and  springing  and  shifting  interests  by  way  of  use  and  devise 
were  releasable  at  law.  The  release,  however,  was  only  available 
to  effect  the  future  interest  where  it  operated,  not  as  a  convey- 
ance by  way  of  enlargement  of  the  releasee's  interest,  but  by 
way  of  extinguishment  of  the  releasor's  interest.-  From  this 
it  follows  that  the  release  to  have  any  effect  must  run  to  him 
whose  interest  would  be  defeated  by  the  taking  effect  of  the 
contingent  remainder  or  executory  interest  which  was  to  be 
released.  To  put  it  another  way,  the  release  will  be  effective 
only  so  far  as  the  taking  effect  of  the  future  interest  in  possession 
will  cut  short  or  interfere  with  the  interest  of  the  releasee.  All 
the  cases  proceed  upon  this  principle.  Thus,  a  contingent  re- 
mainder after  a  life  estate  may  be  released  to  the  reversioner.^ 
So,  the  holder  of  a  shifting  executory  interest  cutting  short  a 
preceding  fee  simple  can  release  to  the  holder  of  the  preceding 
fee.*  The  conveyance  by  the  holder  of  the  future  interest  in 
the  property,  which  would  not,  however,  be  affected  by  the  taking 
eft'ect  of  the  future  interest,  could  not  consistently  with  the 
rules  of  the  common  law  be  conveyed  under  the  guise  of  a 
release.  Thus,  if  the  limitations  were  to  A  for  life,  remainder  to 
B  in  fee,  with  a  future  interest  in  C  if  B  die  without  issue  him 
surviving,  C's  attempted  release  to  A  would  be  ineffective.  It 
could  not  operate  by  way  of  extinguishing  the  future  interest, 
but  only  by  way  of  enlarging  the  life  estate  by  adding  to  it  by 
means  of  a  conveyance  of  the  future  interest.-'* 

pin,    249    111.    406;    214    Fed.    928;  Lampson,  10  Oh.  St.   101;   Miller  v. 

Hull  V.  Ensinger,  257  111.  160.  Emans,   19   N.   Y.    384;    DeWolf   v. 

2  2  Preston  on  Conveyancing,  268,  Gardiner,  9  R.  I.  145.  Compare, 
269,  392,  471,  473;  Fearne,  Con-  however,  Edwards  v.  Varick,  5  Denio 
tingent  Remainders,  423,  421,  note  (N.  Y.)  664;  11  Wend.,  110;  13 
(d).             '  Wend.  178.     The  releasor  must  have 

3  Washburn  on  Real  Property,  6th  at  the  time  of  the  release  some  right, 
ed.  528;  Williams  on  Real  Property,  The  release  by  the  son  of  the  execu- 
17th  Int.  ed.  422;  Carahar  v.  Lloyd,  tory  devisee  in  the  lifetime  of  his 
2  Com.  Rep.  (Australia)  480.  parent   is    entirely    ineffective    even 

*  Williams  v.  Esten,  179  111.  267;  when  made  to  the  holder  of  the  next 

Smith  V.  Pendell,  19  Conn.  107;  For-  interest  preceding  the  executory  de- 

tescue  V.  Scatterthwaite,  1  Ired.  L.  vise:  Dart  v.  Dart,  7  Conn.  250. 

(23  N.  C.)  566;   Lampet 's  Case,  10  =  See     cases     cited     in     Lampet 's 

Coke  46b,  48a,  48b;    Coates  Street,  Case,   10  Coke  46b,  51.     The  dMa 

2     Ashm.      (Pa.)      12;     Jeffers     r.  of  Williams  v.  Esten,  179,  267  and 

336 


Ch.  XV]  REVERSIONS  AND  REMAINDERS  [§322 

§  321.  Operation  of  the  doctrine  of  estoppel  by  covenants 
of  warranty — Where  the  Remainder  vests  in  the  warrantor: 
If  the  contingent  remainderman  attem])tcd  to  alienate  by  a  deed 
with  warranties  and  the  remainder  vested  in  his  lifetime,  the 
remainder  under  certain  circumstances  would  pass  by  way  of 
estoppel  to  the  alienee.  This  occurred  in  England  if  the  transfer 
were  "by  fine  (or  by  a  common  recovery,  wherein  the  person 
entitled  to  the  contingent  estate  comes  in  as  a  vouchee 
»  #  *  ),"ti  Following  the  analogy  it  seems  clear  that,  by 
a  deed  with  covenants  sufficient  to  pass  an  after  acquired  title 
by  estoppel,'^  a  contingent  remainder  may  so  far  be  affected  that, 
upon  the  happening  of  the  contingency,  which  caused  the  estate 
to  vest,  the  estate  would  inure  to  the  grantee  as  an  after  acquired 
title.8 

§  322.  Where  the  remainder  vests  in  the  warrantor's  heir — 
Case  stated  and  considered  on  principle:  Suppose,  however, 
that  after  the  contingent  remainderman  has  attempted  to  alien- 
ate by  warranty  deed  he  dies  and  his  contingent  remainder  de- 
scends to  his  heir,  and  subsequently  the  contingency  happens 
upon  which  the  remainder  vests  in  the  heir.  Does  the  title  to 
the  remainder  inure  by  way  of  estoppel  to  the  grantee  of  the 
ancestor? 

It  might  be  urged  that  at  common  law  the  heir  of  the  war- 
rantor is  bound  if  he  be  expressly  named  in  the  covenant  and 

Ortmayer    v.    Ekoek,    225    111.    342,  warranty    (Rawle  on  Covenants  for 

are  contra.  Title,  5th  ed.  364  ct  seq.). 

6  Fearne,   Contingent  Remainders,  s  Walton    v.    Follansbee,    131    111. 

366;    1    Preston    on    Conveyancing,  147,    159-160;    Williams    i'.    Esten, 

301.  179    111.     267,    271     (semble).      In 

'  Observe  that   under  the   Englisli  Thomas    r.    Miller,   161   111.    60,    the 

authorities  there  were  only  two  eases  remainderman    did    not    survive    the 

where    the    after    acquired    title    or  life  tenant  so  that,  though'  the  deed 

estate    actually    passed   by   estoppel  contained  covenants  of  warranty,  it 

to  the  transferee.     First,  where  the  never  became  effective, 

nfode  of  assurance  was  a  feoffment.  Observe  that  in  Ridgeway  r.  Un- 

a  fine  or  a  common  recovery.     Sec-  derwood,  67  111.  419,  428,  the  court 

ond,    where    the    assurance   was    by  quotes   from    Story's   Equity   Juris- 

lease.       (Rawle    on    Covenants    for  prudence,    sec.    1040,    to   the    effect 

Title,  5th  ed.  p.  360).    In  the  United  that  contingent   interests  may   pass 

States  either  by  statute  or  decision  by  estoppel  when  conveyed  by  lease 

the    same   effect  is   generally   given  and  release, 
to    deeds    containing    covenants    of 

Kales  Fuf.  Int.— 22  337 


§  322]  FUTURE   INTERESTS  [Ch.  XV 

if  assets  descend  to  liim;^  that  the  heir  is  mentioned  by  force  of 
the  Illinois  statute;  i*'  and  that  assets, — viz.,  the  very  land  in 
question  or  the  possibility  of  getting  it, — have  descended  to 
him;  that  being,  therefore,  bound  by  the  covenants  of  his 
ancestor,  there  is  raised  against  the  heir  an  original  estoppel. 
But  because  the  heir  is  bound  on  his  ancestor's  covenants  by 
reason  of  assets  descending,  hardly  justifies,  without  more,  the 
further  holding  that  the  lands  so  descending  are  subject  to  an 
equity  with  which  they  were  not  charged  while  in  the  hands  of 
the  ancestor.  It  is  one  thing  to  create  a  personal  liability  on  the 
heir  to  the  extent  of  assets  descending,  and  quite  another  to  add 
to  that  the  creation  of  a  duty,  enforceable  specifically  by  a  court 
of  equity,  to  convey  the  very  lands  so  descending. ^^  In  the 
former  case  the  purchaser  from  the  heir,  knowing  all  the  facte, 
is  protected  in  his  title.  In  the  latter  case  he  could  be  charged 
to  make  a  conveyance  in  the  same  way  that  the  heir  could  be. 
If  the  fact  that  the  descent  of  assets  raises  any  new  and  original 
estoppel  b}^  deed  against  the  heir  it  must  be  on  analogy  to  the 
effect  of  the  ancient  "lineal  warranty."  Suppose  that  a  life 
tenant  in  possession,  with  remainder  or  reversionary  interests  in 
others,  conveys  in  fee  with  full  covenants  of  warranty,  in  which 
the  heirs  are  named,  and  then  dies,  leaving  as  his  heirs  those 
entitled  in  remainder  or  reversion.  The  heirs  do  not  take  the 
land  from  their  ancestor.  Hence  they  cannot  take  it  subject  to 
any  equities  against  the  ancestor.  If  they  are  bound  by  any 
estoppel  it  must  be  because  an  original  estoppel  is  raised  against 
them  by  the  fact  that  they  are  bound  by  their  ancestor's  cove- 
nants because  assets  descended  to  them.  By  the  ancient  feudal 
warranty,  which  was  implied  from  a  conveyance  by  feoffment, 
the  heir  in  the  case  stated  was  estopped  to  deny  the  title  of  his 
ancestor's  feoffee.^ 2  This  was  the  application  of  the  doctrine 
of  "lineal  warranty."  It  was  not  until  the  time  of  Queen  Anne 
that  "lineal  warranties"  were  substantially  abolished  in  Eng- 
land, and  the  heir  in  the  case  stated,  no  longer  bound  by  any 
estoppel.  1^     The   ancient   implied    feudal   warranty  no   longer 

9  Eawle,  Covenants  for  Title,  5th  12  Rawle,  Covenants  for  Title,  5th 
ed.  515.                                                         P<1.  4. 

10  R.  S.  1874,  Ch.  30,  §9.  ^^  Id.,  11,  353. 

11  Eawle,  Covenants  for  Title,  oth 
ed.  358. 

338 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§323 

exists.  It  disappeared  with  the  passing  of  conveyances  by 
feoffment.  The  modern  express  covenants  of  warranty  which 
began  with  the  introduction  of  conveyances  under  the  Statute 
of  Uses  have  taken  its  place.^^  It  might  be  argued  that  the 
effect  to  be  given  to  these  covenants  must  follow  the  analogy 
to  the  effect  of  the  ancient  feudal  warranty ;  that  since  the 
statute  of  Anne  is  not  in  force  in  this  state  by  re-enactment  it 
is  not  in  force  at  all,  nor  is  there  any  other  statute  which  pre- 
vents the  application  of  the  doctrine  of  "lineal  warranty";  that, 
therefore  that  doctrine  must  govern,  and  the  heir  be  estopped. 
Such  an  argument  has  in  it  enough  logic  to  be  dangerous,'^  but 
it  neglects  the  force  of  the  passing  of  time  and  the  change  in 
social  conditions.  The  Supreme  Court  may  or  may  not  hold  the 
statute  of  Anne  actually  in  force  here.^*'  If  it  does  not  regard 
it  as  in  force  it  may  very  well  hold  that  the  doctrine  of  "lineal 
warranty"  is  peculiarly  applicable  to  the  time  when  "homage 
and  warranty  w'cre  reciprocal,"  ^" — when  the  vassal  gave  up  his 
land  to  the  lord  in  return  for  the  protection  which  the  lord  and 
the  lord's  heir  were  bound  to  make  good,— and  therefore  en- 
tirely inapplicable  to  the  conditions  of  society  in  England  when 
the  colonies  were  first  settled,  and  much  more  inapplicable  to 
the  conditions  existing  in  the  colonies  themselves,  in  fact  un- 
known in  the  law  of  Virginia  or  any  other  colonies,  or  of  the 
original  states  of  the  Union,  and  therefore  not  incorporated  into 
the  law  of  Illinois. ^^ 

§  323.  The  state  of  the  cases  in  this  State  makes  the  law 
uncertain:  In  three  cases  ^^  a  householder  residing  upon 
premises  subject  to  a  homestead,  conveyed  by  warranty  deed  to 
a  third  party,  not  waiving  the  homestead  exemption,  and  there- 
after continued  to  reside  upon  the  premises  up  to  the  time  of  his 
death.     Upon  the  death  of  the  householder  the  court  held  that 

14  Id.,  16.  18  Pollock  V.   Speidel,  17   Oh.   St. 

15  It  prevailed  in  Carson  v.  New  439;  Crisfield  v.  Storr,  36  Md.  129; 
Bellevue  Cemetery  Co.,  104  Pa.  St.  Russ  v.  Alpaugh,  118  Mass.  369;  4 
575.  Kent's  Com.  469.     Compare,  Perrin 

10  Russ    V.    Alpaugh,    118    Mass.  v.  Lepper,  34  Mich.  292. 
369;  Crisfield  v.  Storr,  36  Md.  129.  1 9  Anderson  v.  Smith,  159  111.  93; 

Compare,  however,  dictum  in  Fisher  Despain    v.   Wagner,    163    111.    598; 

V.  Deering,  60  111.  114.  Stickel  r.  Crane,  189  111.  211. 

17  Rawle,  Covenants  for  Title,  5th 
ed.  2. 

339 


^',i2:l\  FUTURE   INTERESTS  [Ch,  XV 

the  one  thousand  dollar  liouiestead  interest  passed  to  his  heirs 
and  that  the  heirs  were  not  bound  by  any  estoppel.  This  was 
an  appropriate  place  to  apply  the  doctrine  of  estoppel  by  deed 
following  the  analogy  of  lineal  warranty,  so  as  to  bind  the  heir, 
if  the  court  had  had  any  inclination  to  do  so.^o 

In  Goll<idaij  v.  Knock -^  the  testator  devised  real  estate  to  his 
wife  for  her  life,  with  a  remainder  to  such  of  her  children  as 
survived  her,  and  if  none,  to  "Moses  and  his  heirs."  The  wife 
died  in  1907,  without  children  surviving  her.  Moses  died  in 
1855,  leaving  as  his  heirs  William  and  Mary.  William  conveyed 
by  warranty  deed  to  Fuller,  and  died  in  1904.  The  decree  found 
that  Fuller  was  not  entitled  to  anything  under  this  deed,  and 
this  was  affirmed.  If  the  heirs  of  William  were  claiming  under 
him  (as  it  seems  they  must  have  done,  because  Moses'  contingent 
interest  descended  to  William,  and  from  William  passed  to  his 
heirs  at  his  death  under  the  rule  of  North  v.  Graham)  -^  and  if 
the  warranties  of  William  operated  to  bind  them  by  way  of 
estoppel  because  of  assets  descending  (i,  e.,  the  very  land  war- 
ranted), the  heirs  of  William  must  have  been  bound  by  the 
estoppel,  and  the  after-acquired  title  must  have  inured  to  the 
grantee  in  the  deed  by  force  of  the  estoppel.  Such  a  view,  then, 
the  court  may  in  fact  have  refused  to  adopt.  It  is  probable, 
however,  that  the  court  never  intended  to  rule  upon  the  question 
of  estoppel  at  all.^^ 

In  Pitzer  v.  Morrison,^"^  there  was  a  life  estate  to  Susan  with 
a  remainder  in  fee  to  James  and  an  executory  devise  over  if 
James  died  before  the  testator's  wife  and  daughter  to  the  wife 
and  daughter,  with  a  further  gift  over  if  they  died  and  the 
daughter  left  no  children,  to  the  heirs  of  James.  Susan,  James 
and  his  wife,  and  the  testator's  wife  and  daughter  conveyed  by 
warranty  deed  to  Morrison,  who  conveyed  an  undivided  half  to 
the  complainant,  who  filed  a  bill  for  partition.  It  was  held  that 
Morrison  and  the  plaintiff  held  the  fee,  subject  only  to  the  gift 
over  to  the  wife  and  daughter;  that  the  gift  over  to  the  latter 
had  been  eliminated  because,  though  their  warranty  deed  did 
not  pass  their  executory  devise,  yet  their  warranties  bound  not 
only  the  wife  and  daughter  so  as  to  pass  any  after-acquired  title 

-■0  Kales,    Homestead    Exemption  22  235  111.  178;  post,  §  381. 

Laws,  §§79-108.  ^^Post,   §382,   note   84. 

21  235  111.  412.  24  272  111.  291. 

340 


ClI.  XV'J  KEVEKSIONS    AND   REMAINDERS  |  ^  32:i 

coming  to  them,  but  it  also  bound  the  heirs  (and  presumably 
the  devisees  also)  of  the  wife  and  daughter,  so  that  any  title  to 
the  executory  devise  passing  to  the  heirs  or  devisees  of  the  wife 
and  daughter  would  also  inure  by  way  of  estoppel  to  the  grantee. 
Still  more  recently  we  have  a  third  case  which  seems  to  adopt 
an  intermediate  view  between  denying  any  effect  of  estoppel  to 
the  warranties  and  allowing  them  full  effect.  In  Gavvin  v. 
Carroll'^''  the  testator's  son  John  had  a  fee  with  an  executory 
devise  over  if  he  died  without  is.sue  to  the  testator's  surviving 
children.  All  John's  brothers  and  sisters  conveyed  to  him  h\ 
warranty  deed,  and  he  thereupon  claimed  an  indefeasible  title 
in  fee  simple,  and  filed  a  bill  to  remove  the  executory  devise  as  a 
cloud.  A  decree  that  he  held  an  indefeasible  title  in  fee  was 
reversed.  It  seems  to  have  been  conceded,  at  least  for  the  sake 
of  argument,  that  tiie  estoppel  created  by  the  warranty  might 
prevent  the  brothers  and  sisters,  and  their  heirs  as  well,  from 
claiming  under  the  executory  devise;  but  the  court  then  held 
that  this  was  the  limit  of  the  estoppel;  that  it  would  simply 
operate  to  prevent  anyone  claiming  to  take  under  the  executory 
devise;  that  the  result  of  this  would  be  that  if  John  died  with- 
out leaving  issue  his  fee  would  be  divested,  the  gift  over  could 
not  take  effect,  and  there  would  therefore  be  an  intestacy.  This, 
it  is  submitted,  is  the  least  satisfactory  solution  of  the  problem. 
If  the  heirs  and  devisees  of  the  warrantors  are  bound  by  the 
estoppel  because  of  a.ssets  descending  (/.  e.,  an  interest  in  the 
land  which  has  been  warranted  and  the  title  to  which  ultimately 
vests  in  the  heirs  or  devisees  of  the  warrantor),  then  all  the 
consequences  of  the  estoppel  should  follow,  and  an  after- 
acquired  title  should  pass  to  the  grantee  by  estoppel,  even  though 
it  passes  from  the  heirs  or  devisees  of  the  warrantor.  If,  on  the 
other  hand,  the  heirs  or  devisees  of  the  warrantor  are  not  to 
be  bound  by  any  estoppel  which  will  pass  an  after-acquired  title, 
they  should  not  be  bound  by  any  estoppel  at  all,  but  should  be 
entitled  to  claim  the  title  which  has  passed  to  them.  The  com- 
promise position,  that  the  heirs  of  the  warrantor  are  bound  by 
the  warranty  so  that  they  cannot  claim  and  yet  the  first  taker's 
interest  may  be  divested  so  that  there  will  be  an  intestacy,  would 
seem  to  be  unnecessary  and  at  the  same  time  to  do  the  maximum 

25  276  111.  478. 

341 


§  324]  FUTURE   INTERESTS  [Ch.  XV 

harm  to  tlio^e  who  were  intended  to  enjoy  the  property  and  to 
benefit  those  who  were  least  likely  in  the  long  run  to  be  marked 
out  for  benefit  in  the  events  which  have  happened.  It  is  incon- 
gruous that  the  warranty  deed  should  bring  no  benefit  to  the 
warrantee ;  should  prevent  the  heirs  of  the  warrantor  from  mak- 
ing any  claim,  and  throw  the  estate  on  a  remote  heir  at  law  of 
the  creator  of  the  interests  who  never  supposed  that  there  was  a 
possibility  of  his  securing  it. 

§324.  Alienable  by  descent:  ^t-  To  the  general  rule  "that 
a  contingent  remainder  of  inheritance  is  transmissible  to  the 
heirs  of  the  person  to  whom  it  is  limited,  if  such  person  chance 
to  die  before  the  contingency  happens,"  Fearne  ^^  adds  only  the 
practical  exception  of  the  case  "where  the  existence  of  the 
devisee,  etc.,  of  the  contingent  interest,  at  some  particular  time, 
may  by  implication  enter  and  make  part  of  the  contingency 
itself,  upon  which  such  interest  is  intended  to  take  effect."  By 
way  of  illustration  he  puts  a  case  where  the  husband's  remainder 
in  fee  was  contingent  upon  his  surviving  his  wife,  the  life  tenant, 
and  where  he,  having  died  first,  the  contingency  never  arose  and 
so  his  heirs  took  nothing.  There  is,  therefore,  nothing  artificial 
about  this  exception.  The  rule  and  the  exception  amount  only 
to  this :  That  all  contingent  remainders  descend  unless  the  death 
of  him  who  is  to  take  upon  the  happening  of  the  contingency,  is 
such  an  event  as  forever  makes  it  impossible  for  his  interest  to 
vest.28    Thus,  if  the  remainder  is  contingent  upon  the  life  tenant 

2c  For  the  tracing  of  the  descent  an  interest,  where  the  person  to  take 

of  contingent  remainders,  see  post,  is  certain,  are   transmissible  by  de- 

§§  380-382.  scent.     »     *     «     if    the    person    be 

27  Fearne,  Cont.  Eem.  364;  see  not  ascertained,  they  are  not  then 
also  Gray,  Rule  against  Perpetui-  possibilities  coupled  with  an  inter- 
ties,  §  118.  est,  and  they  cannot  be  either  de- 

28  In  the  6th  ed.  of  Washburn  on  vised  or  descend  at  the  Common 
Eeal  Property,  vol.  2,  §1557,  it  is  Law."  (Quoted  in  Eidgeway  v. 
laid  down  that  "where  the  person  Underwood,  67  111.  419,  427).  It  is 
is  ascertained  who  is  to  take  the  submitted  that  this  language  is  on 
remainder,  if  it  becomes  vested,  and  its  face  suggestive  of  highly  arti- 
he  dies,  it  will  pass  to  his  heirs."  ficial  rules  concerning  the  descent 
In  Kent's  Commentaries,  14th  ed.  of  contingent  remainders  and,  so  far 
vol.  4,  star  page,  261,  it  is  said  that  as  it  means  anything  different  from 
"all  contingent  estates  of  inheri-  the  simple  suggestion  of  Fearne,  it 
tance,  as  well  as  springing  executory  is  obscure  and  perhaps  erroneous, 
uses  and  possibilities,  coupled  with  For  instance,  suppose  the  limitations 

342 


Ch.  XV] 


REVERSIONS   AND    REMAINDERS 


:§324 


dying  without  leaving  issue  surviving,  the  remainder  is  trans- 
missible by  descent  even  while  it  remains  contingent.-'' 

There  is,  however,  much  in  the  Illinois  Reports  to  lead  the 
unwary  to  the  conclusion  that  if  a  remainder  is  contingent  upon 
some  event  which  may  occur  after  the  death  of  the  remainder- 
man, and  the  remainder-man  dies  before  the  life-tenant  and 
before  the  contingency  happens,  the  remainder  is  gone,  and  the 
grantor  takes  by  way  of  reversion.  This  is  the  natural  inference 
from  a  number  of  cases  where  the  whole  question  seemed  to  be 
the  general  one  of  whether  the  remainder  was  vested  or  con- 


be  to  A  for  life,  then  to  the  young- 
est son  of  B  in  fee  (but  without  any 
contingency  that  the  youngest  son 
survive  A).  B  has  two  sons,  C  and 
D.  D,  the  youngest,  dies  in  the  life 
of  A.  Does  his  remainder  descend? 
It  is  possible  that  under  the  lan- 
guage used  by  Washburn  and  Kent 
it  might  not.  It  is  submitted,  how- 
ever, that  it  should.  There  is  no 
reason  in  making  a  distinction  be- 
tween a  remainder  in  D  which  is 
contingent  on  the  life  tenant's  dying 
without  issue  surviving  and  one 
which  is  contingent  upon  his  re- 
maining the  youngest  son  of  B.  D 
really  has  in  the  latter  case  a  re- 
mainder contingent  upon  B  not  liav- 
ing  another  son.  Any  other  result 
would,  it  is  submitted,  be  incon- 
gruous because  if  D  who  died  be- 
fore A  turned  out  to  be  the  young- 
est son  on  B  's  death  before  A,  then 
the  remainder  would  fail  entirely 
because  no  one  else  could  take  it  and 
yet  it  could  not  descend.  A  condi- 
tion of  survivorship  would  in  fact 
have  been  included,  though  such  a 
contingency  has  been  by  hypothesis, 
expressly  excluded. 

2»Golladay  v.  Knock,  235  111.  412; 
Drury  v.  Drury,  271  111.  336,  341 
("It  is  also  true  that  a  contingent 
remainder  is  descendible  where  -the 
contingency  is  not  as  to  the  persons 


who  will  take  the  ultimate  remainder 
in  case  it  should  ever  vest.");  Mo- 
roney  v.  Haas,  277  111.  467,  472; 
Ortmayer  v.  Elcoek,  225  111.  342; 
Dickson  v.  Dickson,  23  S.  C.  216; 
Executors  of  M  'Donald  v.  M  'Mullen, 
9  S.  C.  L.  E.  (2  Mill's  Consti.  Rep.) 
91;  Eoundtree  v.  Eoundtree,  26  S. 
C.  450,  471;  Eembert  v.  Evans,  86 
S.  C.  445,  450;  Clark  v.  Cox,  115 
N,  C.  94,  99;  Crawford  v.  Clark, 
110  Ga.  729,  739;  Hennessey  v.  Pat- 
ter-son, 85  N.  Y.  91,  93;  Chess's  Ap- 
peal, 87  Pa.  362;  Minot  v.  Tappan, 
122  Mass.  535;  Cummings  v. 
Stearns,  161  Mass.  506,  507;  Wins- 
low  V.  Goodwin,  48  Mass.  363,  375; 
Loring  v.  Arnold,  15  E.  I.  428; 
Brown  v.  Williams,  5  E.  I.  309,  311- 
316;  Hampson  v.  Brandwood,  1 
Maddock,  381,  386,  387;  In  re  Cress- 
well,  Parkin  v.  Cresswell,  24  Ch.  Div. 
102;  Barnes  v.  Allen,  1  Brown's  C. 
C.  181;  Pinbury  v.  Elkin,  2  Vern. 
759,  766;  Doe  d.  Calkin  v.  Tomkin- 
son,  2  Maule  &  Se'l.  165;  Watkins 
on  Descent,  p.  4;  Jarman  on  Wills, 
6th  cd.  by  Sweet,  1910,  Vol.  1,  80; 
Vol.  2,  1353;  Gray,  Eule  against 
Perpetuities,  §  118. 

As  to  the  descent  of  executory  de- 
vises limited  upon  the  death  of  the 
first  taker  without  issue  surviving, 
see  post,  §  479. 


343 


§  324]  FUTURE   INTERESTS  [Ch.  XV' 

tingent.^'^  In  all  the  remainder  was  held  to  be  vested,  but  in 
several  the  language  of  the  court  is  such  ^^  as  to  give  the  im- 
pression that  if  the  remainder  had  been  held  to  be  contingent — 
no  matter  what  the  contingency  might  be — the  heirs  of  the 
remainder-man  would  take  nothing.  A  closer  examination, 
however,  of  the  cases  will  reveal  that  the  real  question  was  not 
whether  the  remainder  was  vested  or  contingent,  but  whether  it 
was  vested  or  contingent  upon  the  remainder-man's  surviving 
the  life-tenant.22  Qf  course  if  it  were  the  latter  and  the  re- 
mainder-man did  not  survive  nothing  could  pass  to  his  heirs.^^ 

In  Chapin  v.  Nott  ^^  the  remainder  was  subject  to  a  condi- 
tion precedent  that  the  life  tenant  should  die  without  leaving 
issue  him  surviving.  The  remainder-man  died  before  the  life 
tenant  and  then  the  life  tenant  died  without  issue.  It  was  held 
that  the  heirs  of  the  remainder-man  were  entitled.  This  was 
a  correct  result  on  the  ground  that  the  contingent  remainder- 
man's interest  descended  to  his  heirs.  The  court,  however, 
adopted  the  New  York  statutory  definition  of  a  vested  remainder 
and  called  the  remainder  vested,  thereby  causing  it  to  be  in- 
ferred that  if  the  remainder  had  been  contingent  it  could  not 
have  passed  by  descent.^^     This  ground  for  the  decision  has 

30  Green  v.  Hewitt,  97  111.  113;  whether  the  remaiuder  was  vested 
Nicoll  V.  Scott,  99  111.  529;  Scofield  or  contingent  upon  the  remainder- 
V.  Olcott,  120  111.  362;  O'Melia  v.  man  surviving  the  life  tenant  is,  in 
Mullarky,  124  111.  506;  Siddons  v.  other  cases,  to  be  inferred  from  the 
Cockrell,  131  111.  653;  Grimmer  v.  fact  that  the  only  contingency 
Friederich,  164  111.  245;  Welliver  which  could  possibly  have  been 
V.  Jones,  166  111.  80;  Hawkins  v.  found  was  one  that  the  remainder- 
Bohling,  168  111.  214;  McConnell  man  should  survive  the  life  tenant. 
V.  Stewart,  169  111.  374;  Knight  v.  Green  u.  Hewitt,  97  111.  113 ;  Scofield 
Pottgieser,  176  111.  368.  v.  Olcott,   120  111.   362;    O'Melia  v. 

31  Hawkins  v.  Bohling,  168  111.  Mullarky,  124  111.  506;  Siddons  v. 
214;  Green  v.  Hewitt,  97  111.  113,  Cockrell,  131  111.  653;  Welliver  v. 
117;  Scofield  v.  Olcott,  120  111.  362,  Jones,  166  111.  80;  Hawkins  v.  Bohl- 
370  ing,  168  111.  214;  McConnell  v.  Stcw- 

32  In   a    number   of   eases    it   was  art,  169  111.  374. 

made  very  plain  by  the  court  that  33  Strode   v.   McCormick,   158   111. 

this  is  the  proper  distinction.     Nic-  142;    Bates  v.   Gillett,  132  111.   287. 

oil   V.   Scott,   99   111.   529;    Grimmer  34  203  111.  341. 

V.  Friederich,  164   111.  245;    Knight  "■^' There    is    much    in    Kellett    v. 

V.  Pottgieser,  176  111.  368;  Smith  v.  Shepard,  139  111.  433  that  is  similar 

West,  103  111.  332,  337.  to  the  above   case.     There  the  will 

That      the      real      question      was  gave  the  testator's  daughter  a  life 

344 


Ch.XVI 


REVERSIONS    AND    REMAINDERS 


[§325 


now  been  overruled.''" 

§  325.  By  devise :  Is  a  contingent  remainder  devisable '.' 
This  was  not  a  question  about  wliicli  the  common  law  concerned 
itself  because,  at  connnon  law,  lands  were  not  devisable. 
Whether  contingent  remainders  were  devisable  depended,  then, 
upon  the  scope  of  the  Statute  of  "Wills  of  Henry  VIII  ^"  and 
subsequent  legislation  concerning  wills.  The  Statute  of  Wills 
provided  that  "all  and  every  person  and  persons,  having 
manors,  lands,  tenements  or  hereditaments  *  *  *  shall  have 
full  and  free  liberty,  power  and  authority  to  give,  will,  dispose 
and  devise,  as  well  by  his  last  will  or  testament  in  writing,  or 
otherwise  by  any  act  or  acts  lawfully  executed  in  his  life,  all 
his  said  manors,  lands,  tenements  and  hereditaments,  or  any 
of  them  at  his  free  will  and  pleasure."  At  first  the  opinion  in 
England  seems  to  have  been  against  construing  the  statute  as 


estate  and  after  her  death  limited 
a  remainder  to  her  children,  and, 
if  she  died  leaving  no  issue,  then 
to  the  testator's  heirs  at  law.  The 
daughter  had  no  children  at  the 
testator 's  death.  The  remainder  to 
them  was,  therefore,  contingent, 
and  upon  the  well  settled  common 
law  rules  the  remainder  over,  if 
the  daughter  died  without  leaving 
issucj  to  the  testator's  heirs,  was 
certainly  contingent.  There  would 
then  be  a  reversion  in  fee  to  the 
testator's  heirs  until  the  contin- 
gent remainder  in  fee  to  them 
should  vest.  The  daughter  was 
one  of  the  heirs  at  law  of  the  tes- 
tator so  that  she  took  a  life  estate, 
a  contingent  remainder  in  fee  as 
one  of  the  heirs  at  law  (post, 
§23."^),  and  also  a  reversion  in  fee. 
The  very  act  then  of  her  dying 
without  leaving  issue  surviving 
caused  her  contingent  remainder  in 
fee  to  become  vested  and  it  then 
descended  to  her  heirs  at  law.  This 
is  a  possible  explanation  of  the 
language  of  the  court,  on  ]>age  447, 


that  the  remainder  was  vested.  Yet 
there  is  evidently  the  inclination 
to  say  that  the  remainder  was  al- 
ways vested  subject  only  to  be  di- 
vested by  the  death  of  the  life  ten- 
ant leaving  children,  and  that  upon 
this  ground  the  remainder  in  fee  to 
the  daughter  passed  to  her  heirs. 

In  Kirkpatrick  r.  Kirkpatrick, 
197  111.  144,  the  only  possible  con- 
dition precedent  which  would  make 
tlie  remainder  contingent,  was  the 
exercise  of  a  power  by  the  life  ten- 
ant. The  decision  that  the  remain- 
der was  vested  is  correct  enough 
upon  the  ground  that  the  condition 
precedent  was  in  fact  expressed  as 
a  condition  subsequent.  The  im- 
pression is,  however,  left  that  if 
for  any  reason  the  remainder  had 
been  contingent  it  would  not  have 
descended  upon  the  death  of  the 
remainderman  before  the  exercise  of 
the  power  by  the  life  tenant. 

•■*"  Post,  §  358. 

^'32  Hen.  VIII,  ch.  1.  (1540)  ; 
(4  Gray's  Cases  on  Prop.,  2nd  cd. 
30). 


345 


§  325]  FUTURE   INTERESTS  [Ch.  XV 

permitting  the  devising  of  contingent  estates — the  word  "hav- 
ing" being  understood  as  if  it  were  "seized  of, "^^  "But 
modern  decisions,"  says  Fearne,^^  "have  extended  the  same 
power  [referring  to  the  power  to  devise  contingent  interests  in 
chattels  real]  of  testamentary  disposition  to  contingent  and 
executory  descendible  interests  by  considering  the  word  'having' 
in  the  statute  of  wills  as  equivalent  to  'having  an  interest  in.'  " 
Under  such  a  construction  of  the  statute  it  would  seem  that 
a  contingent  remainder  which  was  descendible  was  clearly  de- 
visable.^*^ Can  there  be  any  doubt,  then,  but  that  under  our 
Illinois  statute  on  wills  a  contingent  remainder  is  devisable? 
That  statute  provides  "^^  in  the  first  section  that  every  male  per- 
son, etc.,  "shall  have  power  to  devise  all  the  estate,  right,  title 
and  interest,  in  possession,  reversion  or  remainder  which  he 
or  she  hath  or  at  the  time  of  his  or  her  death  shall  have,  of, 
in  and  to  any  lands     *     *     *. " 

Of  course  there  is  always  this  practical  qualification  upon  the 
rule  that  contingent  remainders  are  devisable:  If  the  re- 
mainder is  contingent  upon  the  remainder-man's  being  alive  at 
a  certain  time,  his  death  before  that  time  forever  prevents  the 
remainder  becoming  vested,  and,  the  possibility  having  ceased, 
one  may  as  well  say  that  nothing  passes  by  the  devise.^ ^ 

38  Fearne,  Contingent  Kemainders,  <i  E,  S.  1845,  536;  E.  S.  1874, 
367.  1101,  Ch.  148,  sec.   1. 

39  Id.  Note  also  that  by  the  stat-  42  See  Maginn  v.  McDevitt,  269 
ute  of  Frauds  (29  Car.  II.  eh.  3;  111.  196;  Fearne,  Cont.  Kem.,  370, 
4  Gray's  Cases  on  Prop.,  2nd  ed.  declares  such  contingent  remainders 
32)  the  interest  in  lands  which  were  devisable  "as  would  be  descendible 
devisable  depended  upon  what  was  to  the  heirs  of  the  object  of  them 
devisable  under  the  statute  of  wills  dying  before  the  contingency  or 
of  Henry  VIII.  In  the  Wills  Act  event  on  which  the  vesting  or  ac- 
(7  Wm.  IV.  and  1  Viet.  ch.  26,  1837,  quisition  of  the  estate  depended." 
III.;  4  Gray's  Cases  on  Prop.,  2nd  As  we  have  seen  {ante,  §324)  the 
ed.  35,  37)  it  was  in  terms  pro-  only  restriction  upon  the  descent  of 
vided  that  "all  contingent,  exeou-  contingent  remainders  was  that  the 
tory  or  other  future  interests  in  death  of  the  ancestor  be  not  of  it- 
any  real  or  personal  estate ' '  should  self  an  event  which  forever  cuts 
be  devisable.  off  the  vesting  of  the  remainder. 

•*o  Fearne,  Contingent  Eemainders,  As    regards    the    devisability    of 

366-371;  infra,  note  42;  Jarman  on  contingent      remainders,     Washburn 

Wills,  6th  ed.  by  Sweet,  Vol.  I.,  80;  and   Kent  both   say  simply:      They 

Vol.  II.,  1353.  are    devisable   when    the    person    to 

346 


Ch.  XV]  REVERSIONS    AND   REMAINDERS  [§326 

111  Harvard  College  v.  Balch,'^'-^  there  is  much  to  lead  the 
unwary  to  the  conclusion  that  our  Supreme  Court  regards  a 
contingent  remainder  as  not  devisable.  The  remainder  in  that 
case  Avas  subject  to  a  condition  arising  out  of  the  power  of 
the  life  tenant  to  dispose  of  the  fee  by  will.  The  failure  of 
the  life  tenant  to  do  this  was  an  event  which  might  have  hap- 
pened after  the  death  of  the  remainder-man,  so  that  when  the 
remainder-man  died  before  the  life  tenant  the  court  might  well 
have  said  that  the  remainder  passed  by  the  will  of  the  remainder- 
man whether  it  Avas  vested  or  contingent.  This  it  did  not  do, 
but  rested  its  decision  w^holly  upon  the  ground  that  the  re- 
mainder was  vested.  This,  doubtless,  was  correct  enough,  but 
it  is  likely  to  be  inferred  from  the  cursory  examination  of  the 
court's  opinion  that  if  the  remainder  had  been  contingent,  it 
would  not  have  been  devisable. 

Topic  3. 
When  the  Contingent  Remainder  Vests. 

§326.  Remainderman  en  ventre  sa  mere:  Since  the  de- 
struction of  the  contingent  remainder  occurred  because  it  had 
not  vested  before  the  particular  estate  terminated,  it  often  be- 
came necessary  to  determine  the  precise  moment  when  the  vest- 
ing occurred.  This  gave  rise  to  difficulties  in  the  case  where 
the  remainder  Avas  contingent  because  the  remainder-man  was 
unborn  and  the  particular  estate  terminated  Avhile  the  re- 
mainder-man was  en  ventre  sa  mere.  Section  14  of  the  act 
concerning  conveyances,^^   protects  the  remainder-man   in  this 

"take   is   ascertained."      (2   Wash-  or    shall    be,    by    any    conveyance, 

burn,      Eeal      Property,      6th      ed.,  limited  in   remainder   to  the  son   or 

§1557;    4    Kent's    Com.,    14th    ed.  daughter  or   to   the   use  of   the   son 

star    page    261).      It    is    submitted  or    daughter    of    any    person,   to   be 

that  Fearne  's  statement  is  the  more  begotten,     such     son     or     daughter, 

complete  and  explicit.  born    after    the    decease    of    his    or 

43  171  111.  275.  her  father,  shall  take  the  estate  in 


44  L.  1837  (spec,  ses.),  p.  14;  E 
8.  1845,  ch.  24,  sec.  14;  L.  1872,  p 
282,  see.  14;  E.  S.  1874,  ch.  30,  sec 
14  (1  A.  &  D.  E.  E.  S.,  pp.  91,  124 
213).  The  act  is  worded  as  fol 
lows:    "When  an  estate  hath  been 


the  same  manner  as  if  he  er  she 
had  been  born  in  the  lifetime  of 
the  father,  although  no  estate  shall 
have  been  conveyed  to  support  the 
contingent  remainder  after  his 
death." 

347 


§  327]  FUTURE   INTERESTS  [Ch.  XV 

case.  It  is  obviously  modeled  after  the  statute  of  William  III.^^ 
In  Kyner  v.  Boll  ^''  it  would  seem  that  this  act  might  have  been 
called  upon  to  meet  any  contention  that  the  contingent  remainder 
to  an  unborn  child  was  destroyed  by  the  merger  of  the  life 
estate  and  reversion  while  the  child  was  en  ventre  sa  mere. 

TITLE  V. 

REMAINDERS  WHICH  ARE  UNCERTAIN  EVER  TO  TAKE  EFFECT 
IN  POSSESSION  BECAUSE  OF  LIMITED  DURATION  OR  SUBJECT 
TO  BE  DIVESTED  BY  SOME  EVENT  EXPRESSED  AS  A  CONDI- 
TION SUBSEQUENT  IN  FORM,  BUT  WHICH  STAND  READY 
THROUGHOUT  THEIR  CONTINUANCE  TO  TAKE  EFFECT  IN 
POSSESSION  WHENEVER  AND  HOWEVER  THE  PRECEDING 
ESTATE  OF  FREEHOLD  DETERMINES— REMAINDERS  VESTED 
BUT  OF  LIMITED  DURATION  OR  DEFEASIBLE. 

§  327,  Examples  of  such  remainders — Their  validity  and 
indestructibility  by  any  rule  of  law  defeating  intent — Their 
alienability:  If  land  be  limited  to  A  for  life,  remainder  to 
B  for  life,  B  may  die  before  A's  life  estate  terminates,  yet  the 
remainder  is  vested,  for  during  its  continuance,  namely,  the  life 
of  B,  it  is  ready  to  come  into  possession  whenever  and  however 
A's  estate  determines.^^ 

The  much  discussed  remainder  to  trustees  to  preserve  con- 
tingent remainders  is  clearly  a  vested  remainder  within  the 
common  law  definition  and  not  a  contingent  remainder,  though 
it  very  seldom  took  effect  in  possession  at  all  and  was  intro- 
duced with  Avords  which  in  form  at  least  seem  like  a  condition 

45  10  &  11  Wm.  Ill,  ch.  16  (1699),  however,  like  the  statute  of  Wm.  Ill 

5   Gray's   Cases    on   Prop.,   2nd    ed.  in  not   applying   to   the   case   where 

48,   note    1.      See   Smith   v.    McCou-  the  remainder  is  limited  to  a  third 

nell,  17  111.  135,  140.  person    contingent    upon    the    birth 

As  the  Stat,  of  Wm.  Ill  was  of  a  child, — viz.,  where  it  is  for  the 
worded  it  did  not  cover  the  case  benefit  of  another  that  the  child 
where  the  remainder  to  the  unborn  in  utero  should  be  considered  born, 
child  was  limited  in  a  will.  That  For  the  proper  result  in  such  a 
case  was  provided  for  in  accordance  case  see  Blasson  v.  Blasson, '2  DeG. 
with  the  rule  of  the  statute  by  the  J.  &  S.  665  (1864)  and  In  re  Bur- 
decision  in  Reeve  v.  Long,  3  Lev.  rows,  Cleghorn  v.  Burrows,  L.  R. 
408  (5  Gray's  Cases}  on  Prop.,  2nd  [1895]  2  Ch.  497. 
ed.  47).  Sec  Smith  v.  McConnell,  ■'6  182  111.  171. 
17  111.  135,  140.  The  Illinois  Act,  •»■  Gray's  Rule  against  Pcrpetui- 
however,  applies  equally  to  remain-  ties,  §102;  Madison  v.  Larmon,  170 
ucrs  created  Vjy  deed  or  will.     It  is.  111.  65. 

348 


Ch.  XV]  REVERSIONS   AND   REMAINDERS  [§327 

precedent,  viz.,  "after  the  determination  of  tlie  precedent  estate 
by  forfeiture  or  otherwise,  in  the  lifetime  of  the  tenant,  to  the 
use  of  the  trustees  and  their  lieirs  during  the  life  of  such  tenant, 
in  trust  for  him  and  to  preserve  contingent  remainders." 
Clearly,  however,  by  its  very  terms,  the  remainder  to  trustees 
stood  ready  throughout  its  continuance  to  take  effect  in  posses- 
sion whenever  and  however  the  preceding  estate  determined.  It 
was  not  limited  upon  an  event  which  could  by  any  po.ssibility 
happen  after  the  termination  of  the  life  estate."*** 

If  the  limitations  are  to  A  i'or  life,  remainder  to  B  and  his 
heirs,  but  if  B  dies  l)efore  A,  then  over  to  C  and  his  heirs,  B,  to 
take  indefcasibly,  must  outlive  A.  But  B's  interest  is  not  con- 
tingent upon  his  surviving  A  in  any  other  sense,  for  if  A's  estate 
terminated  before  his  death,  B  would  at  once  be  entitled  in  pos- 
session, subject  to  have  his  fee  in  possession  divested  if  he  did  not 
survive  ^1.  B  would,  therefore,  stand  ready  at  all  times  during 
the  continuance  of  his  estate  to  take  possession  whenever  and 
however  A's  life  estate  determined.  B's  remainder  is,  therefore, 
vested  in  the  feudal  sense,  although  in  order  to  take  indefcasibly, 
B  must  outlive  A.'*^  B's  remainder  is,  therefore,  alienable  ^'^  and 
indestructible.^^  The  cases  of  this  sort  are  numerous.  So,  where 
the  remainder  is  to  the  children  of  B,  with  a  gift  over,  if  any 
child  dies  before  the  life  tenant  leaving  a  child  or  children,  to 
such  child  or  children,  they  to  take  the  share  which  their  parent 
would  have  taken,  gives  the  child  or  children  of  B,  upon  birth,  a 
vested  and  alienable  remainder. ^^-  The  same  is  true  where  the 
remainder  is  to  the  children  of  B,  with  a  gift  over  if  B  dies  leav- 
ing no  children.^3 

<8Challis,  Real  Property,  iiiul  ed.  Pingrcy    v.    Rulou,    246    111.     109; 

130  et  seq.  Northern  Trust  Co.  v.  Wheaton,  249 

■*9  Gray 's  Rule    against    Perpetui-  111.   606 ;    Lachenmyer   v.    Gehlbach, 

ties,  §108;  Strickland  v.  Strickland,  266   111.   11;    Renimers   v.  Remmers, 

271  111.  614.  280  111.  93;  Haward  v.  Peavey,  12S 

soBlanchard  v.    Blanchard,   1    Al-  111.  430,  439,   (semble)  ;  In   re  Rog- 

len    (Mass.)    223;    Jeffers  v.   Lamp-  ers'  Estate,  97  Md.  674;   Moorcs  v. 

son,  10   Ohio   St.   102.  Hare,  144  Ind.  573;  Callison  v.  Mor- 

51  Pingrcy  v.  Rulon,  246  111.  109;  ris,  123  la.  297. 
Lachenmyer     r.    Gehlbach,    266     III.  53  Ducker  r.  Burnhani,  146  III.  9; 

11.  Hinrichsen    i'.    Hiurichsen,    172    111. 

5- Sniitli    r.    West,    103    Til.    .'IML';  462;    Forsythe   V.   Lansing's    Exr's, 

Siddons    c.    Cockrell,    131    111.    6.53;  ]09  Ky.  518. 

349 


§  328]  FUTURE   INTERESTS  [Ch.  XV 

§  328.  Propriety  of  calling  remainders  of  this  class 
"vested":  A  remainder  to  B  "if  he  survive"  the  life  tenant 
is  contingent. ^^  Many  lawyers  no  donbt  have  been  puzzled  as 
to  the  basis  for  calling  a  remainder  "to  B,  but  if  he  does  not 
survive"  the  life  tenant  then  over  to  C,  vested.  Tlie  uncertainty 
that  the  remainder  will  take  effect  as  an  indefeasible  interest  is 
just  as  great  in  one  case  as  in  the  other.  In  both  cases  alike  the 
remainder-man  B  must  survive  A  in  order  to  take  an  indefeasible 
interest.  True,  the  condition  is  precedent  in  form  in  the  first 
case  and  subsequent  in  form  in  the  second,  but  why  should  the 
mere  dilt'erence  in  the  form  of  the  words  used  make  a  difference 
as  to  whether  or  not  the  remainder  is  alienable  inier  vivos  by 
quit  claim  deed  or  guardian's  deed  or  execution  sale? 

From  the  purely  modern  and  rationalistic  point  of  view  these 
remarks  are  pertinent.  The  answer  to  them,  however,  lies  in  the 
historical  basis  of  the  law  of  real  property  and  the  survival 
in  our  law  today  of  certain  rules  of  the  feudal  land  law. 

It  is  often  overlooked  that  the  absolute  inalienability  of  con- 
tingent remainders  by  any  mode  of  conveyance  inter  vivos  is 
a  survival  of  the  feudal  system  of  land  laws.  It  is  a  survival  of 
the  time  when  contingent  remainders  were  absolutely  void  or 
were  void  until  they  vested,  v;hen  there  was  a  public  policy 
against  the  assignment  of  contingent  interests  and  when  even  a 
right  of  entry  by  a  disseisee  could  not  be  transferred  by  act  of 
the  party.  As  a  modern  and  rationalistic  rule  the  complete 
inalienability  of  contingent  remainders  is  somewhat  incongruous. 
Modern  statutes  which  have  made  the  contingent  remainder  and 
other  contingent  interests  alienable  indicate  that  there  is  today 
little  or  no  public  policy  in  favor  of  the  absolute  inalienability 
of  contingent  remainders  insisted  upon  by  the  feudal  land  law.^^ 
The  same  is  even  more  true  of  the  rule  of  destructibility  of  con- 
tingent remainders.  All  recognize  this  as  a  survival  of  the 
feudal  .system.  For  the  purpose  of  administering  these  two 
feudal  survivals — the  rule  of  absolute  inalienability  inter  vivos 
of  contingent  remainders  and  the  rule  of  destructibility — we 
have  had  to  cling  to  the  feudal  distinction  between  vested  and 

54  Ante,  §  309. 

55  8   and   9   Vict.   ch.   106,  sec.    6 
(1845). 

350 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§328 

contingent  remainders,  even  though  it  does  not  satisfy  modern 
rationalistic  conceptions. 

The  feudal  distinction  had  to  do  largely  with  what  rcinaiiiders 
were  destructible  by  a  rule  of  law  defeating  intent.  That  rule 
clearly  applied  to  a  remainder  to  B  "if  he  survive"  the  life 
tenant.  "Survive"  meant  literally  survive  the  "death"  of  the 
life  tenant.  The  life  estate  therefore  might  terminate  prema- 
turely by  forfeiture  or  merger,  leaving  the  future  interest  not 
yet  ready  to  vest,  so  that  it  could  no  longer  take  effect  as  a 
remainder  according  to  the  feudal  requirements.  It  was  there- 
fore destroyed  or  failed.  On  the  other  hand,  if  the  remainder 
were  to  "B,  but  if  he  did  not  survive"  the  life  tenant  then  over 
to  C,  the  remainder  could  not  be  destroyed  by  any  rule  of  law- 
defeating  intent.  If  the  life  estate  terminated  prematurely  by 
forfeiture  or  merger  B  's  remainder  was  ready  to  come  into  pos- 
session at  once,  though  it  might  afterwards  be  divested  if  B 
died  before  the  life  tenant.  The  condition  subsequent  in  form, 
therefore,  made  an  actual  and,  from  the  feudal  point  of  view,  a 
substantial  difference  in  the  two  cases  by  causing  the  remainder 
"throughout  its  continuance"  to  stand  ready  to  take  effect  in 
possession  whenever  and  however  the  preceding  estate  deter- 
mined. The  change  in  situation  thus  effected  by  the  fact  that 
the  condition  was  exprcvssed  as  subsequent  in  form  made  the  rule 
of  destructibility  inapplicable.  Under  these  circumstances  the 
feudal  law  could  hardly  escape  calling  the  remainder  vested. 

Conceivably  the  feudal  law  could  have  held  this  vested  re- 
mainder in  B  inalienable  inter  vivos  on  the  ground  that  it  was 
uncertain  ever  to  take  effect  indefeasibly  till  the  life  tenant's 
death.  But  the  case  where  the  condition  was  expressed  as  subse- 
quent in  form  by  means  of  a  gift  over  to  C  if  5  did  not 
survive  the  life  tenant,  did  not  arise  in  the  feudal  period 
before  the  Statute  of  Uses  and  Wills  because  before  those 
statutes  the  gift  over  to  C  would  have  been  w-holly  void.  It  did 
not  begin  to  come  up  until  the  gift  over  to  C  had  been  held  valid 
and  indestructible,  which  was  not  until  after  Fells  v.  Brown  ^*^ 
in  1620.  The  question,  therefore,  of  the  alienability  of  B's 
remainder  where  the  condition  was  expressed  as  subsequent  in 

58Cro.  Jac.  590,  2  Roll.  Rep.  196; 
Kales'  Cases  on  Future  Interests, 
65. 

351 


§  329]  FUTURE   INTERESTS  [Ch.  XV 

Lorin  came  up  for  settlement  so  long  after  the  purely  feudal 
period  of  land  law  that  it  is  not  surprising  that,  what  had  been 
called  a  vested  remainder  because  it  was  indestructible  by  any 
rule  of  laAV  defeating  intent,  should  have  been  held  to  be  alien- 
able inter  vivos  according  to  the  letter  of  the  feudal  land  law 
applicable  to  vested  remainders. 

These  then  are  the  reasons  for  Mr.  Gray's  very  precise  state- 
ment ^^  which  has  been  repeated  by  our  Supreme  Court  in  sub- 
stance^^ or  verbatim  •'■•^  many  times:  "Whether  a  remainder 
is  vested  or  contingent  depends  upon  the  language  employed. 
If  the  conditional  element  is  incorporated  into  the  description 
of,  or  into  the  gift  to  the  remainder-man,  then  the  remainder 
is  contingent;  but  if,  after  words  giving  a  vested  interest,  a 
clause  is  added  divesting  it,  the  remainder  is  vested.  Thus, 
on  a  devise  to  A  for  life,  remainder  to  his  children,  but  if  any 
child  dies  in  the  lifetime  of  A  his  share  to  go  to  those  who  sur- 
vive, the  share  of  each  child  is  vested,  subject  to  be  divested  by 
its  death.  But  on  a  devise  to  A  for  life,  remainder  to  such  of 
his  children  as  survive  him,  the  remainder  is  contingent." 

TITLE  VI. 

PROBLEMS  OF  CONSTRUCTION  WHICH  ARISE  IN  DETERMINING 
WHETHER  PARTICULAR  REMAINDERS  ARE  CONTINGENT, 
AND  SO  DESTRUCTIBLE  AND  INALIENABLE,  OR  VESTED 
(WHETHER  INDEFEASIBLE  OR  DEFEASIBLE)  AND  SO  IN- 
DESTRUCTIBLE BY  ANY  RULE  OF  LAW  DEFEATING  INTENT 
AND  ALIENABLE.'!" 

§  329.  Introductory:  A  difficulty  of  construction  frequently 
arises   in   determining   the   proper   interpretation   of   language 

57  Gray 's   Rule    against   Perpetui-  vested  or  contingent  may  come  up : 

ties,  §  108.  1.  Upon  a  bill  by  the  remainder- 

5s  Ducker  v.  Burnham,  146  111,  9,  man  as  vendor  for  specific  perform- 

23;  Haward  v.  Peavey,  128  111.  430,  ance  of  the  contract  of  sale:    Cha- 

439;  Northern  Trust  Co.  v.  Wheaton,  pin  v.  Crow,  147  HI.  219;   Healy  v. 

249  111,  606,  612,  Eastlake,  152  111.  424. 

59  Breehbeller  v.  Wilson,   228   111.  2.  Upon  a  bill  to  set  aside  a  will 

502;    Lachenmyer   v.  Gehlbach,   266  for    uncertainty    in    its    provisions: 

111.    11,    19;    Smith   v.   Chester,   272  Mather  v.  Mather,  103  111.  607. 

111.  428,  437.  3.  In   ejectment,   where  the   ques- 

fi"  Miscellaneous  ways  in  whicih  the  tion  arises  as  to  how  the  plaintiff 's 

question    whether    a    remainder    is  estate  shall  be  described  in  the  judg- 

352 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§330 

used  where  the  ultimate  question  is  wliether  tlie  future  interest 
fulls  within  the  feudal  definition  of  a  vested  or  a  eontingent 
remainder.  This  happens  most  frequently  where  there  is  doubt 
as  to  whether  a  eondition  precedent  in  form  that  the  remainder- 
man must  survive  the  dcutii  of  the  life  tenant  has  been  ex- 
pressed; or  as  to  whether  a  condition  has  been  expressed  as 
precedent  in  form  or  subsequent  in  form.  Complicated,  how- 
ever, with  the  difficulty  of  construction  as  such  is  the  rule  that 
the  courts  will  in  all  cases  of  doubt  lean  toward  an  interpreta- 
tion which  brings  the  remainder  within  the  definition  of  a  vested 
remainder.''^  This  rule  has  been  one  of  extraordinary  vigor 
for  two  reasons  at  least :  First,  because  contingent  remainders 
were  destructible  by  a  feudal  rule  defeating  intent  which  was 
illogical  and  incongruous  after  springing  and  shifting  interests 
created  by  wav  of  use  or  devise  became  valid  and  indestructible. 
Second,  because  contingent  remainders  were  inalienable  by  a 
feudal  rule  which  had  its  origin  in  the  avoidance  of  champerty 
and  the  fact  that  the  contingent  remainder  was  void  till  it 
vested. 

The  following  sections  are  arranged  to  show  the  extraordinary 
lengths  to  which  courts  have  gone  in  special  cases  to  reach  an 
interpretation  which  will  bring  the  remainder  within  the  feudal 
definition  of  a  vested  remainder,  and  also  the  limits  of  such 
extraordinary  processes  of  interpretation.  Then  there  will  be 
pointed  out  certain  tendencies  of  our  Supreme  Court  to  find, 
by  a  species  of  implication,  a  condition  precedent  in  form  that 
the  remainderman  must  survive  the  life  tenant  so  that  the  re- 
mainder is  brought  within  the  feudal  definition  of  a  contingent 
remainder  and  becomes  destructible  and  inalienable. 

§  330.  Limitations  to  A  for  life,  remainder  to  B  "after  the 
death  of  A":      If  the  language  used  in  limitations  of  this 

ment,  according  to  R.   S.   1874,  ch.  the       court       sometimes       declares 

45,     sec.     30,     clause     7;     Field     v.  whether    a    remainder    is    vested    or 

Peeples,  180  111.   376.  contingent:      Thompson    v.    Adams, 

4.  If  the  remainder  is  vested  the  205  111.  552;  Orr  v.  Yates,  209  111. 
rule    against   perpetuities    does    not  222. 

apply.      See    post,    §§652    et    seq.:  ei  it  is  a  corollary  to  this  rule  that 

Howe  V.  Hodge,  152  111.  252;  Madi-  remainders  will  be  construed  to  vest 

son  V.   Larmon,   170   111.   65;    Chap-  at    the    earliest   moment:     Jones    r. 

man  v.  Cheney,  191  111.  574.  Miller,  283   111.   348,  356. 

5.  Upon  a  bill  to  construe  a  will 

Kales  Fut.  Int.— 23  353 


§  331]  FUTURE   INTERESTS  [Ch.  XV 

sort  be  accepted  literally  B  cannot  take  till  A's  death,  which 
would  be  an  event  possibly  not  occurring  till  after  the  termi- 
nation of  A's  life  estate  by  forfeiture  or  merger.  The  remainder 
would,  therefore,  be  contingent  and  destructible  and  inalienable. 
From  the  beginning  courts  have  always  read  the  words  "after 
the  death  of  A"  and  similar  expressions  as  if  they  were  "at 
the  termination  (whenever  and  in  whatever  manner  it  may 
occur)  of  the  particular. estate  of  freehold."  The  remainder  is, 
therefore,  vested  in  the  feudal  sense.*'^  j^  j^  precisely  like  the 
remainder  where  the  limitations  are  to  A  for  life,  remainder  to 
B  for  life.^2  So  where  the  limitations  were  to  the  wife  for  life 
"if  she  do  not  marry  but  if  she  do  marry",  to  H  "presently 
after  her  decease",  the  life  estate  was  construed  to  be  in  the 
widow  during  widowhood  only,  with  the  remainder  to  H  when- 
ever and  however  the  life  estate  terminated,  and  the  remainder 
in  H  was  therefore  vested.^  ^ 

§331.  Where  the  limitations  are  to  A  for  life  and  "if  B 
overlive  A"  then  to  B  for  life:  Here  if  the  contingency  be 
taken  literally  B  has  a  contingent  remainder  because  the  event 
of  B's  overliving  A  might  not  occur  till  after  A's  estate  had 
come  to  an  end  prematurely  by  forfeiture  or  merger."^  The 
approved  construction,  however,  has  always  been  that  the  phrase 

fi2  Doe  V.  Considine,  73  U.  S.  458,  of  the  life  tenant 's  death  then ' '  as 

475 ;  Minnig  v.  Batdorff,  5  Pa.  503 ;  a    basis     for    finding     a    condition 

Doe  V.  Provoost,  4  Johns.    (N.  Y.)  precedent  in  form  that  the  reniain- 

61;    Byrnes   v.    Stilwell,   103   N.   Y.  derman   must   survive   the   life    ten- 

454;  Livingston  v.  Greene,  52  N.  Y.  ant   violate   a   long   settled   practice 

118;   Clieney  v.  Teese,  108  111.  473;  against    attaching    any    significance 

O'Melia  v.  Mullarky,   124  111.  506;"  to    such    phrases    and    greatly    un- 

Ducker  v.  Burnham,  146  111.  9;  Mc-  settle  the  interpretation  to  be  given 

Connell    v.    Stewart,    169    111.    374;  to  language  used  in  the  creation  of 

Knight  V.  Pottgieser,  176  111.  368;  remainders. 

Bowler    v.    Bowler,    176    111.    541;  ^^^  Ante,  §327. 

Brown  v.  Brown,  247  111.  528 ;  Lynn  «•*  Luxford  v.   Cheeke,  3  Lev.   125 

V.  Worthington,   266   111.   414,   418;  (1683);    De    Vitto    v.    Harvey,    262 

People  V.  Camp,  286  III.  511  ("then  111.   66. 

and    in    such    case");     Henkins    v.  "s  The    New    Hampshire   court    so 

Henkins,    287    111.    62.      Expressions  long  as  it  took  the  cantingeney  lit- 

by  our  Supreme  Court  in  Bates  v.  erally  was  sound  in  holding  the  re- 

Gillett,  132  111.  287  and  Kleinhans  mainder  to  be  contingent:    Hall  v. 

V.  Kleinhans,   253   111.   620,   relying  Nute,  38  N.  H.  422;   Hayes  v.  Ta- 

upon    such   contexts   as   "after    the  bor,  41  N.  H.  521. 
life    tenant 's   death "    or    "in    case 

354 


Ch.  XV]  REVERSIONS   AND   REMAINDERS  [§332 

"if  B  overlive  A"  means  "if  B  survive  the  termination,  when- 
ever and  however,  that  may  occur  of  A's  life  estate."  In  this 
view  B's  interest  is  bound  to  take  effect,  if  at  all  whenever  and 
however  the  preceding  estate  determines.  It  is,  therefore,  a 
vested  remainder.'"'  Again,  by  a  process  of  construction,  the 
remainder  is  the  same  as  where  the  limitations  are  to  A  for 
life,  remainder  to  B  for  life.*'"  If,  however,  the  remainder  is 
to  B  in  fee  then  the  expressed  condition  precedent  that  B  over- 
live A  must  be  taken  as  it  stands  and  B's  remainder  is  con- 
tingent.''^ 

§  332.  Remainders  in  default  of  appointment :  '['he  English 
courts  adopted  an  extremely  artificial  and  strained  construc- 
tion to  bring  a  remainder  "in  default  of  appointment"  within 
the  definition  of  a  vested  remainder.  Tlie  usual  formula  of 
words  for  creating  limitations  with  a  remainder  in  default  of 
appointment  is  as  follows:  to  A  for  life,  remainder  to  such  chil- 
dren of  A  as  he  shall  by  deed  or  will  appoint,  and  in  default 
of  appointment,  to  B  and  his  heirs.  If  this  language  be  taken 
as  it  stands  the  event  upon  which  B's  remainder  is  to  take  ef- 
fect is  the  failure  of  A  to  a})point.  If  A  can  appoint  after  he 
ceases  to  be  a  life  tenant,  but  still  lives,  then  the  event  upon 
which  B's  remainder  may  take  effect  is  one  which  may  occur 
after  the  determination  of  A's  life  estate.  Hence  it  would  be 
a  contingent  remainder.  The  English  courts  at  first  so  held.'-'^ 
But  later  it  was  determined  and  settled  that  the  limitations 
should  be  read  as  if  they  were  to  A  for  life,  remainder  to  B 
and  his  heirs,  provided,  however,  that  A  shall  have  power  to 
appoint  among  his  children  and  by  such  appointment  divest 
the  interest  of  B, — thus  making  the  exercise  of  the  power  of 
appointment  a  condition  subsequent  instead  of  the  default  of 
appointment  a  condition  precedent.''^     This  rule  has  been  fol- 

06  Webb  V.  Hearing,  Cro.  Jac.  415  ^~  Ante,  §  327. 

(1617),  Kales'  Cases  on  Future  In-  <i^  Ante,  §309. 

terests,   155.     The   New   Hainpshiie  co  Lovies's  Case,  10  Co.  78a ;  Wal 

oases  referred  to,  supra,  appear  to  pole  and  Conway,  Barnard.  Ch.  l.i.".. 

have    been    overruled:     Kennard   v.  "'^  Doc   il.   Willis   v.   Martin,  4   T. 

Kennard,  63  N.  H.  303;  Wiggin  v.  R.  39. 
Perkins,    64    N.    H.    36;    Parker    v. 
Ross,  69  N.  II.  213. 

355 


§  333]  FUTURE   INTERESTS  [Ch.  XV 

lowed  in  many  cases  ever  since." ^     It  is  the  settled  rule  in  Illi- 
nois."2 

§  333.  Where  the  limitations  are  by  devise  to  A  for  life, 
remainder  to  B  (an  individual  as  distinguished  from  a  class) 
"if"  or  "when"  he  shall  attain  a  given  age,  or  "at"  a  given 
age,  with  a  gift  over  in  the  event  of  his  d3ring  under  that  age : 
Here  the  contingency  that  B  reach  twenty-one  is  expressed  both 
as  precedent  in  form  and  as  subsequent  in  form.  If  the  ex- 
pression of  the  condition  as  precedent  in  form  were  eliminated, 
the  remainder  would  be  vested  subject  to  be  divested.  During 
its  continuance  it  would  stand  ready  to  take  effect  whenever 
and  however  the  life  estate  terminated.  It  came  to  be  the  result 
of  the  English  cases,  under  what  was  known  as  the  rule  of 
Edwards  v.  Hammond,''-^  that  in  just  the  case  put  the  words 
embodying  the  expression  of  the  condition  as  precedent  in  form 
might  be  disregarded  and  the  remainder  was,  therefore,  held  to 
be  vested."*  This  shows  the  lengths  to  which  the  English  judges 
have  gone  in  construing  a  remainder  so  that  it  would  fall  within 
the  definition  of  a  vested  remainder.  It  illustrates  the  vitality 
of  the  rule  that  courts  lean  in  favor  of  a  construction  which 
will  make  the  remainder  vested. 

§  334.  Suppose  the  life  estate  be  omitted  and  the  limitations 
are  directly  to  A  "if"  or  "when"  he  shall  attain  twenty-one, 
with  a  gift  over  in  case  he  dies  under  that  age :  The  English 
cases  applied  the  rule  of  Edwards  v.  Hammond  ^•^  even  here 
and  held  that  A  took  a  fee  at  once  in  possession  subject  only 
to  be  divested  by  an  executory  devise  over  if  he  died  under  the 
specified  age.'^*'  Again  the  condition  precedent  was  disregarded. 
This  course  of  decision  was  carried  even  a  step  farther.    If  real 

71  Gray 's  Eule  against  Perpetui-  74  Edwards  v.  Hammond,  3  Lev. 
ties,  §  112.  1.32    (1683);    Bromficld   v.   Crowder, 

72  Harvard  College  v.  Balch,  171  1  B.  &  P.  N.  R.  313  (1805);  Roome 
111.  275;  Kirkpatrick  v.  Kirkpatrick,  v.  Phillips,  24  N.  Y.  463;  Theobald 
197  111.  144;  Railsback  v.  Lovejoy,  on  Wills,  7th  ed.  573;  Hawkins  on 
116   111.   442;    Sayer   v.   Humphrey,  Wills,  2nd  ed.  by  Sanger,  287. 

216  111.  426;   Bergman  v.  Arnhold,  753  Lev.   132    (1683). 

242  111.  218;    Powers  v.  Wells,  244  7o  Leake,    Digest    of    Land    Law, 

111.    558;    Meldahl    v.    Wallace,    270  367;     Theobald    on    Wills,    7th    ed. 

111.     220.       See     also,     Lehnard     v.  573;   Hawkins  on  Wills,  3rd  ed.  by 

Specht,  180  111.  208.  Sanger,  287. 
733  Lev.  132   (1683). 

356 


Ch.  XV]  REVERSIONS    AND   REMAINDERS  \  ^  Xi-') 

estate  were  devised  to  B  for  a  term  of  years  till  A  reached 
twenty-one  and  then  to  A  when  he  attained  that  age,  A  was 
held  to  take  the  fee  absolutely  and  indefeasibly,  subject  to  the 
term.  If  A  died  before  he  reached  twenty-one  his  interest  went 
to  his  heirs  subject  to  the  term.  The  apparent  contingency  is 
made  to  read  as  if  it  were  "at  the  end  of  the  term,"  to  A.  This 
is  known  as  the  rule  in  Boraston's  CaseJ"^  It  was  referred  to 
with  approval  in  Carter  v.  Carter.'^.  In  BUsh  v.  IlamiU''*  the 
rule  in  Boraston's  Case  and  the  extension  of  the  rule  in  Edwards 
V.  Hammond  were  approved  and  applied.'^'^  An  undivided  one- 
fourth  was  devised  to  Charles  for  a  term  of  years  till  P]ldon 
reached  twenty-one.  Subject  to  this  term  the  fee  was  devised 
to  Eldon  in  these  words:  "In  case  my  said  grandson  lives  to 
attain  the  age  of  twenty-one  years,  it  is  my  will  that  said  un- 
divided one-fourth  of  my  real  estate  shall  become  his  prop- 
erty in  fee  simple."  Then  there  was  a  gift  over,  "In  case 
my  said  grandson,  Eldon  Hamill,  should  die  before  attaining 
the  age  of  twenty-one  years. ' '  The  court  discussed  these  ques- 
tions: Did  this  give  Eldon  a  fee  subject  to  a  term,  which  fee 
was  limited  upon  a  condition  precedent  that  Eldon  must  sur- 
vive the  age  of  twenty-one  years,  or  was  the  fee  an  immediate 
estate  in  possession  (often  called  vested)  subject  to  a  term,  and 
liable  merely  to  be  divested  ?  The  latter  position  was  sustained. 
This  would  seem  to  commit  our  Supreme  Court  to  the  rule  of 
Edwards  v.  Hammond,  and  to  the  extreme  position  taken  in  the 
English  cases  that  in  some  instances  an  excuse  must  be  found 
for  disregarding  or  getting  rid,  by  interpretation,  of  a  condi- 
tion precedent  in  form  to  the  taking  effect  of  a  remainder  or 
other  interest. 

§  335.  Where  the  limitations  are  by  devise  to  A  for  life, 
then  to  the  children  of  A  (a  class)  "at,"  "when"  or  "if "  they 
attain  twenty-one,  with  a  gift  over  in  default  of  children  who 
attain  twenty-one:  Here  the  rule  is  the  same  as  in  ^  :iS:i  The 
remainder  to  the  children  is  vested  subject  only  to  be  divested. 
It  makes  no  difference  that  the  remainder  is  to  a  class.si  This 
"773    Co.    19a,    20b;    Hawkins    on  '9  273  111.132. 

Wills,    3rd     ed.    by     Sanger,     284;  so  See  also  Lunt  v.  Lunt,  108  111. 

Leake,  Digest  of  Land  Law,  266.  307,  313,  314;  Kingman  v.  Harmon, 

78  234  111.  507,  514.    But  compare       131  111.  171,  175. 
the   result    reached    in    Kingman   v.  si  Doe  v.  Nowell,  1  M.  &  S.  327 ; 

Harmon,  131  111.  171.  5    Dow.    203    (H.    of    L.)  ;    Doe    v. 

357 


^  336]  FUTURE  INTERESTS  [Ch.  XV 

again  shows  how  far  the  English  judges  would  go  to  construe 
a  remainder  so  that  it  would  fall  within  the  feudal  definition  of 
a  vested  remainder. 

^  336.  Where  the  remainder  is  to  "the  children  of  A  who 
shall  attain  twenty-one"  or  "to  such  children  of  A  as  shall 
attain  twenty-one,"  with  a  gift  over  in  default  of  children 
attaining-  that  age :  Here  the  attainment  of  a  given  age  is  so 
explicitly  made  a  part  of  the  description  of  the  devisee  that  the 
English  courts  were  unable  to  say  that  there  was  not  an  ex- 
pressed condition  precedent  to  the  taking  effect  of  the  remainder. 
They  were  obliged,  therefore,  to  hold  the  remainder  contingent 
and  destructible  by  a  rule  of  law  defeating  intent.s^ 

^  337.  Limitations  to  A  for  life,  remainder  to  B  "if  he  sur- 
vive A;  if  he  does  not"  to  C:  In  one  English  case  Avherc  such 
limitations  were  involved,^"'^  the  court  refused  to  apply  the  rule 
of  Edwards  v.  Hammond.^'^  The  condition  precedent  in  form 
that  the  remainderman  survive  the  life  tenant  could  not  be  dis- 
regarded. The  remainder  was,  therefore,  contingent  and  de- 
structible by  a  rule  of  law  defeating  intent.  The  New  Hampshire 
court  on  the  other  hand,  relying  on  the  rule  of  Edwards  v.  Ham- 
mond, disregarded  the  condition  precedent  of  survivorship  and 
held  the  remainder  vested  and  therefore  liable  to  be  accelerated 
by  the  renunciation  of  the  life  tenant.^s     This  indicates  what 

Ward,    9    Ad.    &    El.    582 ;    Doe    d.  were  to  A  for  life,  remainder  to  B 

Evers  v.  Challis,  18  Q.  B.  224,  231;  and    his    heirs    "in   case    she    shall 

7  H.  L.  531.  survive  and  outlive  the  said  A  but 

82  Testing  v.  Allen,  12  Mees.  &  not  otherwise,  and  in  case  she  die 
W.  279  (1843)  ;  Bull  v.  Pritchard,  in  the  lifetime  of  the  said  A,  then 
6   Hare,    567    (1847),   1   Euss   213;  to  A  and  his  heirs." 

Holmes  v.  Prescott,  33  L.  J.  Ch.  84  Ante,  §  334. 
N.  S.  264  (1864);  Ehodes  v.  White-  85  Parker  v.  Boss,  69  N.  H.  213. 
head,  2  Dr.  &  Sm.  532  (1865);  In  this  ease  after  a  life  estate  in 
Theobald  on  Wills,  7th  ed.  573-574;  the  whole  property  there  was  a  de- 
Hawkins  on  Wills,  3rd  ed.  by  San-  vise  of  portions  to  the  chUdren 
ger,  289.  Contra:  Browne  v.  "then  living"  of  three  different 
Browne,  3  Sm.  &  G.  568  (1857).  sisters,  then  follows  the  gift  over 
Cf.  Jull  V.  Jacobs,  3  Ch.  D.  703,  in  these  words:  "If  there  should 
713  (1876).  See  also,  Pitzel  v.  not  be  any  of  the  children  of  any 
Schneider,  216  111.  87.  of  my  deceased  sisters  living,  their 

83  Doe  V.  Scudamore,  2  Bos.  &  P.  portion  shall  be  divided  equally 
289    (1800).      Here    the   limitations  among  the  other  legatees." 

358 


Ch.XV]  hkversioxs  and  remaindkhs  [§ -^^O 

courts  are  likely  to  do  and  the  leiif^tli  to  wliich  they  may  go  in 
construing  a  remainder  so  that  it  will  be  vested. 

§  338.  Limitations  to  A  for  life,  remainder  to  the  children 
of  A  "who  survive,"  and  if  any  die  before  A  to  their  chil- 
dren, if  any;  if  not,  then  over:  Here  the  remainder  to  the 
children  who  survive  A  is  regularly  held  contingent  and  de- 
structible ^"  and  inalienable.^'  IVIr.  Justice  Viekers  in  Northern 
Trust  Coynpany  v.  Wheaton  ^^  brings  out  very  clearly  the  dif- 
ference between  the  case  where  the  contingency  that  the  remain- 
derman survive  the  life  tenant  is  expressed  only  as  subsequent  in 
form  and  where  it  is  expressed  both  as  precedent  and  subsequent 
in  form.  He  says,  ' '  An  estate  may  be  vested  and  a  clause  added 
introducing  a  condition  upon  the  happening  of  which  it  will  be 
divested.  Thus,  a  devise  to  A  for  life,  remainder  to  his  children, 
but  if  any  child  dies  in  the  lifetime  of  A  his  share  to  go  to 
those  who  survive,  the  share  of  each  child  is  vested  but  subject 
to  be  divested  upon  his  death  during  the  life  of  A.  On  the 
other  hand,  a  devise  'that  all  of  the  residue,  rest  and  remainder 
of  my  estate,  real,  personal  and  mixed,  then  remaining  in  the 
hands  of  said  trustees  shall  be  equally  divided  among  such  of 
my  four  children  [naming  them]  as  may  survive  my  said  wife 
or  the  issue  of  any  of  my  said  children  who  may  have  died  before 
my  wife,  such  issue  to  take  the  share  that  would  have  belonged 
to  the  parent,'  creates  a  contingent  remainder." 

§339.  Where  the  limitations  are  "to  A  for  life,  remainder 
to  the  children  of  A  who  survive  A  and  to  the  children  of  any 
who  do  not  survive  A,"  without  any  further  gift  over:  Here 
also  the  remainder  is  held  to  be  contingent.  The  expressed  con- 
dition precedent  in  form  that  the  children  of  A  must  survive  A 
cannot  be  disregarded.®'^ 


ssBlakeley  r.  Mansfield,  274  111 
133;  Barr  v.  Gardner,  259  111.  256 
Brechbeller  v.  Wilson,  228  111.  502 

""  Robeson  r.  Cochran,  255  111 
355.     See  also  Wakefield  t'.  Wake 


53  Conn.  261;  Nodine  v.  Greenfield, 
7  Paige  Ch.   (N.  Y.)   544. 

ss  249  111.  606,  612.  • 

89  Haward  v.  Peavey,  128  111.  430; 
Thompson  r.  Adams,  205  111.  552. 


field,  256  111.  296.  See  also  Starr  r.  Willoughby,  218 

In  other  jurisdictions  a  tendency  111.   485,   where,   however,   the   point 

may   be   observed   to    disregard    the  was  not  really  involved  because  the 

condition  precedent  of   survivorship  remainderman  died,  leaving  children 

in  the  case  put  and  to  hold  the  re-  who  were  entitled  in  any  event, 

mainder  vested :  Famam  v.  Farnam,  Cases    may    no    doubt    be    found 

.    359 


340]  FUTURE   INTERESTS  [Ch,  XV 


§  340.    Where  the  limitations  are  to  A  for  life,  remainder  to 
B  "if  he  survive  A"  and  if  he  does  not  and  dies  without  leav- 
ing issue,  over  to  C:     Here  if  B  must  survive  A  in  order  to 
take,  then,  upon  B's  death  before  A  leaving  children,  the  chil- 
dren will  be  excluded  but  the  gift  over  will  not  take  effect,  and 
there  may  be  an  intestacy  or  the  residuary  clause  may  apply. 
Under  these  circumstances  the  inclination  is  very  strong  to  con- 
strue the  remainder  vested  by  disregarding  the  express  condi- 
tion precedent  of  survivorship.     Romilly,   M.   R.   in  Finch  v. 
Lane  ^^  held  the  remainder  vested  and  the  children  of  the  re- 
mainderman who  died  before  the  life  tenant  were  entitled.    Our 
Supreme   Court  had  the  same  situation  before  it   in   City   of 
Peoria  v.  Darst  ^^  and  declared  the  remainder  was  contingent. 
This  was  unnecessary  to  the  decision,  however,  because  the  re- 
mainderman died  before  the  life  tenant  without  issue  and  the 
gift   over,   therefore,   took   effect    whether   the   remainder   was 
vested  or  contingent.     It  may  be  that  the  court  felt  bound  to 
hold  the  remainder  contingent  so  that  the  gift  over  would  take 
effect  as  a  further  contingent  remainder  and  not  as  a  shifting 
interest  or  fee  on  a  fee.     The  court  may  have  thought  it  neces- 
sary to  take  the  latter  view  because  it  labored  under  the  mis- 
apprehension that  the  ultimate  gift  over  was  a  fee  on  a  fee  by 
deed,  and  therefore,  void.^^    Once  the  fallacy  that  there  cannot 
be  a  fee  on  a  fee  by  deed  operating  under  the  Statute  of  Uses 
is  dissipated,  as  it  now  seems  to  be,^^  there  is  no  reason  why 
the  court  should  not  handle  the  question  of  construction  upon 
general  and  well-settled  principles  and  consider  the  remainder 
vested,  as  was  done  in  Finch  v.  Lane.    Where,  however,  the  re- 
mainder was  limited  to  A  and  B  if  they  survived  the  life  tenant, 
with  a  gift  over  to  the  survivors  if  either  died  without  issue,  and 
if  one  died  leaving  issue  one-half  to  such  issue  and  the  other 
half  to  the  survivor,  there  was  not  the  same  argument  as  in 
Finch  V.  Lane  for  vesting  the  remainder  and  the  remainder 

•where  even  such  a  remainder  as  is  ^o  L.  R.  10  Eq.  501  (1870). 

referred  to  in  the  text  has  been  held  oi  101  111.  609. 

vested,    the    condition   precedent    of  92  post,  §  445. 

survivorship        being       disregarded.  ^^  Post,  §  462. 

See    Wood    v.    Eobertson,    113    Ind. 

323. 

360 


Ch.  XV]  REVERSIONS   AND    REMAINDERS  [§342 

was,  therefore,  held  to  be  contingent  on  the  remainderman  sur- 
viving the  life  tenant.'''* 

§  341.  Where  the  limitations  are  to  A  for  life,  remainder 
to  "his  children  surviving  him"  with  a  gift  over  if  A  die 
"without  issue  surviving  him":  Here  if  A  has  a  child  wlio 
dies  before  him  leaving  issue,  the  latter  cannot  take  if  the  re- 
mainder to  the  children  is  contingent  on  their  surviving  the  life 
tenant.  The  gift  over  cannot  take  effect  because  A  does  not  die 
without  issue  surviving.  There  may  be  an  intestacy.  These 
circumstances,  together  with  the  fact  that  the  remainder  if  con- 
tingent is  destructible  and  inalienable  and  the  fact  that  the 
courts  construe  it  vested  if  possible,  might  warrant  the  remainder 
being  held  vested  as  in  the  case  of  Finch  v.  Lane.^^  If  the  re- 
mainder, instead  of  being  limited  to  A's  children  "who  survive 
A,"  were  limited  to  A's  children  "or  the  survivor  or  survivors 
of  them,"  there  would  be  a  still  further  argument  in  favor  of 
vesting  the  remainder  in  the  feudal  sense  subject  only  to  be  di- 
vested, so  that  the  remainder  would  be  indestructible  by  any 
rule  of  law  defeating  intent.  Our  Supreme  Court  in  Smith  v. 
Chester  ^^  seems  to  have  inclined  to  the  contrary  opinion  and  the 
remainder  was  there  held  contingent  and  destructible.  In 
Robeson  v.  Cochranp'^  where  the  limitations  were  by  deed  to  A 
for  life  and  on  his  death  leaving  issue,  to  such  issue  in  fee,  but 
in  case  of  A's  death  without  such  issue,  to  the  grantor,  the  re- 
mainder to  the  children  of  A  was  held  to  be  contingent  on  their 
surviving  the  life  tenant.  It  appeared  that  no  child  pf  A,  who 
died  in  A's  lifetime,  had  left  issue. 

§  342.  Where  the  limitations  are  to  A  for  life,  remainder, 
"in  case  A  dies  leaving  any  children  surviving,"  to  them,  the 
issue  of  any  child  taking  their  deceased  parent's  share;  but 
should  A  survive  all  the  children  (they  having  died  without 
issue)  then  to  A:  Here  the  contingency  of  one  of  A's  children 
dying  without  leaving  any  issue  is  not  provided  for.  If  that 
child's  interest  is  vested  it  will  descend  upon  the  child's  death 
before  the  life  tenant.  If  not,  there  may  be  an  intestacy.  In 
Siddons  V.  CockrcU  '^^  our  Supreme  Court  appears  to  have  dis- 
regarded the  express  condition  precedent  of  survivorship  and 

94  Chapin  v.  Crow,  147  111.  219.  9^  055  m,  ^^^ 

85  L.  E.  10  Eq.  501;  ante,  §340.  98  131  m.  653. 

96  272  111.  428. 

361 


^  343]  FUTURE  INTERESTS  [Ch.  XV 

held  the  remainder  vested,  with  the  result  that  when  one  child 
died  without  issue  in  the  life  of  the  life  tenant  his  interest 
passed  by  descent.  This  case  is  notable  as  showing  how  far  the 
court  is  prepared  to  go  to  make  a  remainder  vested.  It  is  es- 
pecially important  in  view  of  the  eases  referred  to,  post,  §§  350 
et  seq.,  where  our  Supreme  Court  seems  to  have  developed  an 
extraordinary'  astuteness  in  making  the  remainder  contingent. 

§  343.  Remainder  to  A,  B  and  C,  "or  the  survivor  or  sur- 
vivors" of  them:  Here  survivorship  must  be  referred  to  the 
death  of  the  life  tenant  and  not  to  the  death  of  the  testator. 
Hence  only  those  can  take  who  survive  the  life  tenant.^^  This 
is  so  whether  the  remainder  is  vested  subject  to  be  divested  or 
subject  to  a  condition  precedent  in  form  that  only  those  are  to 
take  who  survive  the  life  tenant.  Suppose,  however,  the  life 
estate  and  what  would  be  the  reversion  in  fee  if  the  remainder 
were  contingent  unite  so  as  to  terminate  prematurely  the  life 
estate.  In  that  case  the  question  would  arise  whether  the  re- 
mainder were  to  those  of  A,  B  and  C  who  survive  the  life  tenant, 
so  as  to  be  a  contingent  remainder  and  destructible,  or  a  re- 
mainder to  A,  B  and  C,  vested  subject  only  to  be  divested  if 
any  die  before  the  life  tenant  in  favor  of  survivors.^  It  is  sub- 
mitted that  having  due  regard  for  the  fact  that  taken  literally 

39  In  re  Gregsou  's   Trust   Estate,  i  So  if  A,  B  and  C  all  died  before 

2  De  G.  J.  &  S.  428;  In  re  Belfast  the  tenant,  the  question  would  arise 

Town  Council,  13  L.  E.    (Ir.)    169;  whether  the  remainder  to  A,  B  and 

City    of   Peoria    v.    Darst,    101    111.  C  was  vested  subject  to  be  divested 

609.  in  favor  of  a  survivor,  or  was  not 

The  same  rule  has  long  been  ap-  to  take  effect  at  all  except  in  such 

plied     in    bequests     of     personalty.  as  survived  the  life  tenant.    It  may 

Hawkins  on  Wills,  3rd  ed.  by  San-  be  worth  noting  in  this  connection 

ger,  312.  that  according  to  the  English  cases 

The  earlier  English  cases,  in  the  "a  bequest  to  several,  or  to  a  class, 
effort  to   vest  a  remainder  of  real  '  or '   to   such   of   them  as   shall   be 
estate    and    thus    avoid    the    feudal  living    at    a    given    period,    is    con- 
consequences  of  the  remainder  being  strued  as  a  vested  gift  to  all,  sub- 
contingent,  construed  ' '  survivor ' '  as  j^ct  to  be  divested  in  favor  of  those 
meaning    survivor    of    the    testator  living    at   that   period,   if    there   be 
and  not  of  the  life  tenant.    Doe  v.  such;    and  if  none  are  then  living, 
Prigg,  8  B.  &  Cr.  231,  and  see  the  all  are  held  to  take."     Hawkins  on 
opinion  of  the  Lord  Justices  in  In  Wills,  2nd  ed.  by  Sanger,  318. 
re    Gregson's    Trust    Estate,   supra. 
These    decisions    must    now    be    re- 
garded as  overruled. 

362 


Ch.  XV]  REVERSIONS    AND   REMAINDERS  [§345 

the  form  of  words  used  makes  only  a  condition  subsequent  or 
divesting  clause  and  the  rule  that  the  courts  -will  construe  a 
remainder  vested,  if  possible,  the  remainder  might  be  wholly 
vested  in  A,  B  and  C,  subject  only  to  be  divested  and  hence 
not  destructible  by  any  rule  of  law  defeating  intent.  The  con- 
trary result  seems  to  have  been  reached,  however,  in  Smith  v. 
Chester.^  The  remainder  has  also  been  held  to  be  inalienable 
inter  vivos  by  execution  sale  during  tlie  life  of  the  life  tenant.'' 

>5  344.  Limitations  to  A  and  B  for  life  and  in  case  of  the 
death  of  either,  to  the  other:  This  creates  a  remainder  which 
is  subject  to  a  condition  precedent  in  form  that  the  remainder- 
man survive  the  life  tenant.  It  is,  therefore,  a  contingent  re- 
mainder.* 

§  345.  Cases  where  a  remainder  has  been  limited  without 
any  explicit  condition  precedent  in  form  that  the  remainder- 
man survive  the  life  tenant,  but  where  there  has  been  a  gift  or 
gifts  over  in  case  the  remainderman  dies  before  the  life  tenant 
— Bearing-  of  the  results  noted  in  the  preceding  sections  upon 
the  problem  of  construction  now  presented:  An  examination 
of  the  preceding  sections,  especially  §§  330-344,  will  show  that 
the  cases  considered  have  been  those  where  there  was  in  the 
context  an  express  condition  precedent  in  form  to  the  remainder 
taking  effect  and  where  the  courts  went  to  an  extreme  limit  in 
disregarding  the  language  providing  for  such  a  condition  prece- 
dent in  order  to  bring  the  remainder  within  the  feudal  defini- 
tion of  a  vested  remainder  so  that  it  would  be  indestructible  and 
alienable.  In  some  instances  the  courts  disregarded  the  express 
contingency  entirely  or  turned  it  into  a  phrase  introducing  the 
remainder  by  such  words  as  "whenever  and  however  the  pre- 
ceding estate  determines. ' '  ^  In  one  instance  they  twisted  the 
condition  expressed  as  precedent  in  form  only  into  a  condition 

-  272   111.   428.     See  also  Thomp-  by    deed    was    void.      The    moment 

son    V.    Adams,    205    111.    552,    and  this  fallacy  is  exploded  there  is  no 

Meldahl    v.    Wallace,    270    111.    220.  longer    any    reason    why    the    court 

As   already    explained,    ante,   §  340,  should  adhere  to  the  proposition  that 

the  only  reason  for   the   courts   in-  the  remainder  in  such  a  case  must 

sisting,    in    the    City    of    Peoria    v.  be  contingent. 

Darst,    101    111.    609,    that    the    re-  3  Hull  v.  Ensinger,  257  111.  160. 

mainder     was     contingent     was     to  <  Cover  v.  James,  217  lU.  309. 

avoid  the  rule  that  a  fee  on  a  fee  6  Ante,  §  330. 

363 


§  345]  FUTURE   INTERESTS  [Ch.  XV 

expressed  as  subsequent  in  form.^  In  other  instances  they  dis- 
regarded the  express  condition  precedent  in  form  and  regarded 
only  tlie  condition  expressed  as  subsequent  in  formJ  The 
errors  (if  they  may  be  so  called)  of  the  English  judges  were 
in  favor  of  vesting  the  remainder,  not  against  vesting.  Ameri- 
can cases  have  in  some  instances  gone  further  than  the  English 
in  making  the  remainder  vested.^ 

In  view  of  these  results  what  is  to  be  expected  when  the  re- 
mainder has  been  limited  to  individuals  or  a  class  ivithout  any 
explicit  condition  precedent  in  form  that  the  remainderman 
survive  the  life  tenant  but  with  a  gift  or  gifts  over  which  pur- 
port to  divest  the  remainderman 's  interest  if  he  dies  before  the 
life  tenant? 

First:  There  is  no  doubt  about  the  difference  (so  far  as  vest- 
ing is  concerned)  between  the  remainder  on  the  one  side  limited 
without  any  condition  precedent  in  form  to  its  taking  effect  and 
with  a  condition  subsequent  in  form  which  purports  to  divest 
it  if  the  remainderman  dies  before  the  life  tenant,  and  on  the 
other,  the  remainder  which  is  subject  to  a  condition  precedent 
in  form  that  the  remainderman  survive  the  life  tenant.  The 
former  is  vested  and  the  latter  not.  Our  Supreme  Court  has 
made  its  perception  of  this  plain  beyond  question.  Mr.  Justice 
Vickers  in  Brechheller  v.  Wilson^  quoted  from  Gray's  Rule 
Against  Perpetuities,  as  follows:  "Gray,  in  his  Rule  Against 
Perpetuities  (sec.  108),  lays  down  the  following  clear  test  for 
distinguishing  between  a  vested  and  a  contingent  remainder: 
'Whether  a  remainder  is  vested  or  contingent  depends  upon  the 
language  employed.  If  the  conditional  element  is  incorporated 
into  the  description  of  or  the  gift  to  the  remainder-man,  then 
the  remainder  is  contingent ;  but  if,  after  words  giving  a  vested 
interest,  a  clause  is  added  divesting  it,  the  remainder  is  vested. 
Thus,  a  devise  to  A  for  life,  remainder  to  his  children,  but  if 
any  child  dies  in  the  lifetime  of  A  his  share  to  go  to  those  who 
survive,  the  share  of  each  child  is  vested,  subject  to  be  divested 
by  its  death;  but  a  devise  to  A  for  life,  remainder  to  such  of 
his  children  as  survive  him,  the  remainder  is  contingent.' 
The  above   statement   of  the  rule   is   in   accordance   with  the 

c  Ante,  §  332.  8  Ante,  §  340. 

7  Jnte,  §§333,  334,  335,  340.  9  228  111.502,506. 

364 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§345 

previous  decisions  of  this  court. "^"  In  Smith  v.  Chester  ^^ 
the  Court  said :  ' '  Where  a  devise  by  its  terms  is  to  a  person  for 
life  with  the  remainder  to  such  of  the  children  of  that  person 
as  survive  at  his  death  the  remainder  is  contingent  •  *  *. 
On  the  other  hand,  where  the  devise  by  its  terms  is  to  a  person 
for  life,  remainder  to  the  children  of  such  person,  with  the  provi- 
sion that  should  any  of  said  children  die  without  issue,  the  chil- 
dren surviving  at  the  death  of  the  testator  shall  take  the  share 
of  such  deceased  children,  the  remainder  in  such  case  has  been 
held  to  be  a  vested  remainder,     *     *     *." 

Second:  The  only  way,  then,  to  find  a  condition  precedent  in 
form  that  the  remainderman  must  survive  the  life  tenant  when 
none  is  explicitly  inserted  is  to  resort  to  a  species  of  implication 
or  interpretation  by  w^hich  the  condition  precedent  in  form  is 
reflected  from  other  parts  of  the  context — in  the  case  under 
consideration,  from  the  gifts  over  expressed  as  subsequent  in 
form.  Such  a  process  of  implication,  that  is  to  say,  the  finding 
of  express  words  making  a  condition  precedent  in  form  when 
no  such  words  are  to  be  found  physically  in  the  instrument  is 
a  step  of  doubtful  propriety. 

Third:  The  chief  objection  to  such  a  process  of  implication 
or  reflection  of  a  condition  precedent  in  form  of  survivorship  is 
that  it  violates  the  fundamental  rule  that  courts  will  do  all 
they  legitimately  can — and  sometimes  a  little  more — to  so  in- 
terpret the  limitations  creating  the  remainder  that  there  will  be 
no  condition  precedent  in  form  to  the  taking  effect  of  the  re- 
mainder. Such  a  violation  of  so  clearly  established  and  vital 
a  rule  is  unfortunate  enough,  but  consider  the  enormity  of  the 
error  of  implying  a  condition  precedent  in  form  that  the  re- 
mainderman must  survive  the  life  tenant  from  the  mere  fact 
that  there  are  gifts  over  if  the  life  tenant  does  not  survive! 
Of  what  use  is  it  to  announce  that  a  gift  over  on  a  condition 
subsequent  in  form,  divesting  the  remainder  if  the  remainderman 

10  The    same    statement    of    Gray  nounced  in  Ducker  v.  Bumhani,  146 

was   quoted    with    approval    by    the  111.  9,  23;    Haward  v.  Peavey,  128 

Court  in  Smith  v.  Chester,  272  111.  111.  430,  439.     See  also  statement  of 

428,   437.     In   Lachenmyer   v.   Gehl-  Mr.    Justice    Vickers    in    Northern 

bach,     266     111.     11,     19,     and     in  Trust  Company  v.  Wheaton,  249  111. 

Strickland    v.    Strickland,    271    111.  606,  612,  already  quoted,  ante,  §  338. 
614,  621.     The  same  doctrine  is  an-  n  272  111.  428,  437. 

365 


§  346]  FUTURE   INTERESTS  [Ch.  XV 

does  not  survive  the  life  tenant,  causes  the  remainder  to  be 
vested  and  indestructible  and  alienable,  if  from  the  mere  fact 
of  the  gift  or  gifts  over  the  court  immediately  raises  by  im- 
plication a  condition  precedent  in  form  that  the  remainderman 
must  survive  the  life  tenant  ? 

It  would  certainly  be  a  reasonable  expectation  on  the  part  of 
conveyancers  and  counsel  that  when  a  remainder  has  been  lim- 
ited to  individuals  or  to  a  class  without  any  explicit  condition 
precedent  in  form  that  the  remainderman  survive  the  life  tenant, 
but  where  there  has  been  a  gift  or  gifts  over  on  a  condition  sub- 
sequent in  form  which  divests  the  remainder  if  the  remainder- 
man does  not  survive  the  life  tenant,  the  remainder  would  be 
vested  and  indestructible  and  alienable  inter  vivos.  More  than 
that,  it  would  be  a  fair  expectation  that  a  condition  precedent 
in  form  that  the  remainderman  survive  the  life  tenant  would 
never  be  reflected  back  or  found  by  implication  from  a  gift  or 
gifts  over  if  the  remainderman  died  before  the  life  tenant.  But 
even  more  than  that,  it  might  fairly  have  been  expected  that 
slight  elements  of  context  connected  with  the  gift  over  would 
not  be  permitted  to  produce  a  condition  precedent  in  form 
that  the  remainderman  survive  the  life  tenant. 

Such  expectations  have  been  fulfilled  in  some  decisions  of  our 
Supreme  Court.  In  others  they  have  not.  The  decisions  are 
in  a  state  of  practical  confusion.  The  distinctions  drawn  are 
so  fine  as  to  escape  the  perception  of  any  but  the  most  diligent 
and  penetrating  constructionist.  The  writer,  while  not  in  sym- 
pathy with  some  of  the  distinctions  taken,  has  nevertheless  en- 
deavored to  express  them  as  clearly  as  possible. 

§  346.  Where  the  remainder  is  to  named  individuals  with 
a  gift  over,  if  any  die  before  the  life  tenant,  to  survivors: 
Here  our  Supreme  Court  has  said  the  remainder  was  vested  in 
the  feudal  sense,  following  literally  Gray's  statement  in  §  108 
of  his  Rule  Against  Perpetuities.^ ^ 

§  347.  Where  the  remainder  is  to  named  individuals  or  to 
a  class  wdth  two  gifts  over,  usually  one,  "if  any  die  leaving 
children,  to  such  children";  and  the  other  "if  any  die  with- 
out children,  to  the  survivors,"  or,  "if  all  die  without  chil- 

12  Stri&kland    v.    Strickland,    271       proceeds  as  if  a  remainder  of  real 
111.  614  (personal  property  only  was       estate  were  in  question), 
involved,    but    the    court's    opinion 

366 


Ch.  XV]  REVERSIONS   AND   REMAINDERS  [§347 

dren,  to  A":  Jn  such  cases  we  should  be  able  to  start  with  a 
strong  prima  facie  assumption  that  the  remainder  is  vested,  that 
no  express  condition  precedent  in  form  that  the  remainderman 
must  survive  the  life  tenant  is  present,  and  that  none  may  be 
implied  or  reflected  back  from  the  gifts  over.  The  remainder 
is,  therefore,  indestructible  by  any  rule  of  law  defeating  intent 
and  alienable  intei'  vivos.  The  following  eases  definitely  sup- 
port this  position : 

In  Sidd&ns  v.  Cockrtll  ^•'  the  limitations  were  to  the  widow 
till  her  remarriage.  After  that  one-tiiird  for  life.  Then  the 
will  provided,  "should  she  survive  all  my  children  (they  hav- 
ing died  without  issue),"  to  the  wife  absolutely  "but  in  case 
of  the  death  of  my  wife  leaving  any  of  my  children  surviving" 
to  them  absolutely,  "the  heirs  of  any  of  my  children  taking 
their  deceased  parent's  share."  This  the  court  insisted  must 
be  read  as  follows:  "I  devise  all  my  remaining  real  and  per- 
sonal estate  to  my  children,  and  if  any  children  be  dead  leaving 
children  surviving  tliem,  then  to  them  also, — the  children  of 
the  deceased  child  taking  the  part  of  their  parent;  but  if  all 
my  children  -shall  die  without  issue  before  my  wife  shall  die,  I 
devise  the  same  to  her."  This  is  a  striking  example  of  the 
courts  re-writing  the  language  of  a  will  so  as  to  dissolve  away 
the  express  condition  precedent  in  form  that  the  children  must 
survive  the  death  of  the  life  tenant,  thus  leaving  only  divest- 
ing conditions  subsequent  in  form.  Taking,  however,  the  limi- 
tations as  the  court  read  them  we  have  a  clear  case  of  a  re- 
mainder to  a  class  of  children  without  any  explicit  condition 
precedent  in  form  that  they  must  survive  the  life  tenant,  with 
a  gift  over  on  the  two  events  specified.  No  condition  precedent 
in  form  that  the  children  must  survive  the  life  tenant  was  re- 
introduced by  implication  or  by  any  reflection  back  from  the 
gifts  over.  The  limitations,  therefore,  stqnd  without  any  such 
express  condition  precedent  in  form.  The  remainder  is,  there- 
fore, vested  in  the  feudal  sense  and  alienable  and  indestruc- 
tible. The  court  so  held.  The  result  reached  was  that  a  child 
who  died  before  the  widow's  remarriage  had  an  interest  which 
descended  to  her  heirs.  ^^ 

13  131  111.  653. 

1*  Seo  also  McCampbell  v.  Masou, 
Ibl  111.  500,  510. 

367 


§  347]  FUTURE   INTERESTS  [Ch.  XV 

In  Pingreij  v.  Rulan  i"'  the  limitations  were  to  two  daughters 
for  life  and  the  life  of  the  survivor,  with  a  remainder  to  four 
named  grandchildren  with  these  provisos:  "Provided,  however, 
that  should  any  one  or  more  of  my  above  named  grandchildren 
come  to  his  or  her  decease  without  issue  before  taking  in  fee 
simple,  that  then  the  share  or  shares  of  such  deceased  grand- 
child or  grandchildren  shall  be  apportioned  in  equal  parts  among 
those  of  my  grandchildren  surviving:  But  provided,  also,  that 
if  at  the  time  of  such  decease  my  said  grandchildren  left  issue, 
that  then  such  grandchild's  share  shall  go  to  his  or  her  issue, 
share  and  share  alike,  in  fee  simple."  It  was  further  provided 
that  if  either  of  the  life  tenants  should  have  other  children  then 
the  additional  grandchildren  should  take  in  fee  simple  on  the 
same  terms  as  the  other  grandchildren,  including  those  born 
after  the  four  who  were  named.  The  holding  of  the  court 
recognized  that  the  remainder  was  in  fact  to  all  the  grandchil- 
dren as  a  class.^*'  The  remainder  was,  however,  vested,  sub- 
ject merely  to  be  divested  by  the  provisos,  and  hence  was  in- 
destructible by  conversances  which,  if  the  remainder  had  been 
contingent  on  the  remainderman  surviving  the  life  tenant,  would 
have  terminated  the  life  estate  prematurely  by  merger.  We 
have  here,  therefore,  a  perfect  example  of  the  remainder  which 
is  uncertain  to  vest  indefeasibly  until  the  death  of  the  life 
tenants — a  remainder  which,  in  order  to  vest  indefeasibly,  re- 
quires that  the  remainderman  actually  survive  the  life  tenants — 
and  yet  is  vested  in  the  feudal  sense  at  the  time  of  its  creation 
because  it  stands  ready,  throughout  its  continuance,  to  take 
effect  in  possession  whenever  and  however,  the  preceding  estates 
for  life  determine. 

Lachenmyer  v.  Gehlhach'^''  is  another  leading  case  of  the 
same  kind  and  to  the  same  effect.  There  the  limitations  were 
to  the  wife  for  life;  "after  the  death  of  my  said  wife  *  *  * 
to  my  children,  share  and  share  alike,  and  should  any  of  my 
children  die,  then  the  children  of  such  deceased  child,  should 
any  children  be  surviving  such  deceased  child,  to  take  the  share 

15  246  111.  109.  that  the  remainder  was,  in  effect  and 
1"  See    also    Lachenmyer   v.   Gehl-  in  form,  to  the  whole  class  of  grand- 
bach,    266    III.    11,    21,    where    the  children." 
court  said,  speaking  of  Pingrey  v.  1^266  111.  11. 
Rulon,   246   111.    109,    "It   was   held 

368 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§347 

of  tlie  parent  so  deceased;  and  should  any  of  uiy  cliildrcn  die 
leaving  no  issue  then  the  share  of  such  deceased  child  shall  be 
divided  equally  among  my  surviving  children."  It  was  held 
that  the  remainder  was  vested  in  the  children  and  was  in- 
destructible by  any  rule  of  law  defeating  intent.  This  was 
directly  involved  because  if  the  remainder  in  the  children  had 
been  contingent  there  were  conveyances  which  would  have  ter- 
minated the  life  estate  prematurely  l)y  merger  and  destroyed 
all  contingent  remainders.^^ 

Now  let  us  turn  to  the  cases  which  might  be  thought  to  be 
out  of  line  with  those  just  analyzed. 

In  Kleinhans  v.  Kleinhans  ^"  the  limitations  were  to  a  son 
and  daughter  for  life  "and  in  case  of  their  death,  then  to  their 
children,  onl}',  and  if  no  children  are  left  by  them,  then  the 
survivor  of  my  said  children  shall  inherit  the  other's."  The 
court  was  chiefly  concerned  in  this  case  with  whether  the  son 
and  daughter  took  life  estates  or  a  fee.^"  It  ventured  the 
statement,  however,  that  the  remainder  to  the  children  of  the 
son  and  daughter  was  contingent  on  their  surviving  the  life 
tenants  and  therefore  was  a  contingent  remainder.  The  court 
said:  "The  words  'in  case  of  their  death,  then  to  their  chil- 
dren, only'  mean  that  the  remainder  to  the  grandchildren  is 
contingent  upon  their  surviving  their  parents."  The  use  of 
the  context  mentioned  has  long  been  discouraged  as  a  basis  for 
holding  the  remainder  contingent.-^  It  is  important  to  ob- 
serve also  that  if  the  remainder  to  the  children  had  really  been 
held  to  be  contingent  in  the  feudal  sense  because  subject  to  a 
condition  precedent  in  form  that  the  children  survive  the  life 
tenants,  conveyances  had  occurred  which  would  have  termi- 
nated the  life  estate  prematurely  bj-  merger  and  destroyed  the 
contingent  remainders.^-  The  decision  actually  reached  re- 
quired a  decree  which  recognized  that  the  remainder  to  the 
children  had  not  been  destroyed.     The  decision,  therefore,  is 

18  In  Smith  v.  West,  103  111.  332,  like  that  presented   to   the   court   in 

the  precise  language  of  the  limita-  Siddons  v.   Cockrell,  supra,  Pingrey 

tions    involved    is    not    given.      The  v.  Rulon,  supra,  and  Lachenmyer  v. 

way    in    which    they    were    summar-  Gehlbaeh,  supra. 
ized  and  the  fact  that  the  remainder  lo  253  111.  620. 

to   the   children  was   held   vested   is  ^^  jnte,  §§166,  167. 

persuasive    that    the    language .  con-  ^^  Ante,  §330. 

strued  by  the  court  in  that  case  was  22  9   m.   Law  Rev.  438. 

Kales  Fut.  Int. — 24  QgQ 


§  347]  FUTURE   INTERESTS  [Ch.  XV 

really  inconsistent  with  the  holding  that  the  remainder  to  the 
children  was  contingent  in  the  feudal  sense.  That  it  was  con- 
tingent in  the  sense  that  the  remaindermen  did  not  take  inde- 
feasibly  till  they  survived  the  life  tenant  is,  of  course,  clear. 

In  Meldahl  v.  Wallace,^^  the  limitations  after  a  life  estate 
were  to  the  grantor's  daughters  without  any  explicit  condition 
precedent  in  form  that  they  survive  the  life  tenant.  Then  there 
were  the  following  gifts  over:  "In  case  of  the  decease  of  any 
of  my  daughters  herein  named,  intestate,  before  my  death, 
then  in  that  case  the  children  of  such  deceased  daughter  shall 
take  their  parent's  share,  both  as  to  realty  and  personalty,  and 
if  any  such  deceased  daughter  so  dying  intestate  leaves  a  hus- 
band surviving,  that  the  husband  have  the  same  right  to  the 
use  and  enjoyment  of  both  the  realty  and  personalty  and  the 
benefit  of  it  as  given  by  the  statutes  of  the  State  of  Illinois," 
One  daughter  died  childless  and  intestate  and  her  husband 
claimed  all  the  personal  property  and  half  the  realty  by  in- 
heritance from  her.  This  was  denied.  It  is  submitted  the  de- 
cision was  correct  on  the  simple  ground  that  the  divesting  event 
had  happened.  The  daughter  ha;d  died  intestate  leaving  a  hus- 
band. The  remainder  was  contingent  in  the  sense  of  being  de- 
feasible in  the  events  which  happened  and  its  indefeasibility 
could  not  be  ascertained  until  the  daughter  vsurvived  the  life 
tenant.  The  remainder  of  the  daughter  having  been  defeated, 
the  husband  took  only  what  the  deed  gave  him.  The  objection 
to  this  solution  might  have  been  made  that  the  husband's  in- 
terest under  the  deed  would  be  a  fee  after  a  vested  remainder 
in  fee  and  as  such  a  fee  on  a  fee  by  deed  and  void.  This  is  an 
old  fallacy  which  has  been  prevalent  in  this  state.^^  It  is  now 
believed  to  be  completely  exploded.^^  Hence  there  is  no  longer 
any  need  to  twist  remainders  into  being  contingent  in  the  feudal 
sense  in  order  to  make  a  gift  over  after  them  valid.  In  the 
case  under  consideration  the  interests,  it  is  believed,  were  all 
equitable  and  therefore  no  rule  that  a  fee  on  a  fee  could  not 
be  created  by  deed  could  by  any  possibility  be  applicable.^^ 
The  expression  of  the  court  to  the  effect  that  the  remainder  was 
contingent  upon  the  daughter  surviving  the  life  tenant  must  be 

23  270  111.  220.  25  po5«,  §462. 

24  Post,   §  445.  26  Posi,  §  472. 

370 


Ch.  XV]  REVERSIONS   AND   REMAINDERS  [§348 

read  as  meaning  that  the  daughter's  vested  remainder  was  sub- 
ject to  be  defeated  when  she  died  intestate  before  the  life  tenant. 

In  Betz  V.  Farling,-''  the  limitations  were  to  the  two  children 
for  life  with  gifts  over  upon  the  death  of  either,  to  his  or  her 
children  or  issue,  and  if  one  died  leaving  no  children  or  issue, 
to  the  survivor  or  her  children,  with  a  gift  over  if  both  died 
without  issue,  to  the  county  of  ^I.  One  of  the  life  tenants  died 
leaving  children  and  one-half  the  estate  vested  in  them  inde- 
feasibly.  The  interest  in  the  other  half  was  contingent  in  the 
sense  that  if  the  life  tenant  died  without  leaving  children  it 
would  go  over  to  the  children  of  the  deceased  life  tenant.  The 
question  was  whether  the  children  of  the  deceased  life  tenant 
could  have  partition.  It  was  held  that  they  could.  The  fact 
that  the  children  of  the  living  life  tenant  could  not  have  had 
it  did  not  prevent  the  suit.  This  case  did  not  involve  the  feudal 
distinction  between  vested  and  contingent  remainders.  The 
decree,  however,  found  expressly  that  the  remainder  to  the  chil-- 
dren  of  the  living  life  tenant  was  to  those  who  "should  be  liv- 
ing at  her  death"  and  this  was  aflfirmed.  This  meant  that  if 
one  child  died  leaving  children  before  the  life  tenant,  the  life 
tenant's  grandchildren  would  not  share,  and  yet  the  gift  over 
would  not  take  effect  because  some  children  of  the  life  tenant 
did  survive  her.  If  the  decree  so  provided,  its  affirmance  was 
unfortunate  because  the  remainder  was  not  subject  to  any  con- 
dition precedent  in  form  of  survivorship.  The  remainder  was 
vested  in  the  children  of  the  life  tenant  as  they  were  born,  sub- 
ject only  to  be  divested  if  all  the  children  of  the  life  tenant 
died  before  the  life  tenant. 

§  348.  Where  the  remainder  is  to  named  individuals  (who 
are  adults)  or  to  a  class  (in  esse  and  adult)  with  a  single  gift 
over  if  any  die  without  leaving  children  or  issue  to  the  sur- 
vivors: Here  the  gift  over  furnishes  an  argument  in  favor  of 
vesting  and  there  is  an  absence  of  any  condition  precedent  in 
form  that  the  remainderman  survive  the  life  tenant.  If  the 
remainderman  die  before  the  life  tenant,  leaving  children,  and 
his  remainder  were  subject  to  a  condition  precedent  in  form 
that  he  survive  the  life  tenant,  his  own  children  would  be  en- 
tirely cut  otf.  Where  the  remaindermen  are  adults,  especially 
if  they  are  married  and  have  young  children,  this  is  a  real 

2T  274  HI.  107. 

371 


§  348]  FUTURE   INTERESTS  [Cll.  XV 

danger.  Such  a  result  is  clearly  incongruous  for  a  testator  or 
settlor  who  makes  a  gift  over  if  the  remainderman  dies  with- 
out leaving  children  must  mean,  especially  where  there  is  no 
condition  precedent  of  survivorship,  that  the  remainderman  is 
to  take  absolutely  and  indefeasibly  in  every  other  event  so  that 
upon  his  death  leaving  children  they  may  take  by  descent  or 
devise  from  him.^s  Under  these  circumstances  the  practitioner 
would  surely  be  justified  in  a  strong  prima  facie  assumption 
that  the  court  would  not  find,  by  any  process  of  implication  or 
reflection  back  from  the  gift  over,  an  express  condition  prece- 
dent in  form  that  the  remainderman  must  survive  the  life  tenant. 
The  prima  facie  inference  would  therefore  be  that  the  remainder 
was  vested,  alienable  and  indestructible.  Two  excellent  deci- 
sions of  our  Supreme  Court  support  this  position. 

In  Ducker  v.  Burnham,^^  the  limitations  involved  after  the 
creation  of  a  life  estate  in  the  testator's  wife  were  as  follows: 
"After  the  death  of  my  wife  I  direct  that  all  m.y  property  and 
estate  then  remaining,  both  real  and  personal,  be  by  my  surviv- 
ing executor  equally  divided  between  my  said  five  children,  share 
and  share  alike.  In  case  of  the  death  of  any  of  my  said  children 
without  issue,  either  before  my  death  or  before  receiving  either 
of  the  portions  above  given  him  or  her,  I  direct  that  the  share 
of  such  child  be  equally  divided  among  my  surviving  children, 
share  and  share  alike."  The  remainder  in  the  children  was  held 
to  be  vested  in  the  feudal  sense  and  therefore  alienable  upon 
execution  sale. 

In  Hinrichsen  v.  Hinrichsen  ^'^  the  will  provided  for  a  life 
estate  in  the  wife  "and  at  her  death  the  same  to  be  divided 
equally  among  my  children"  and  "in  case  either  of  my  said 
sons  shall  die  without  leaving  legal  heirs  of  their  body  or  heirs 
thereof,  that  the  said  estate  shall  be  inherited  by  the  remaining 
son  *  *  *."  One  son  died  before  the  life  tenant  leaving 
children.  The  event  did  not  happen  upon  which  the  gift  over 
was  to  take  effect.  No  condition  precedent  of  survivorship  could 
be  implied  or  reflected  back  from  the  gift  over  so  as  to  deprive 
the  son's  children  of  the  possibility  of  inheriting  from  him.  In 
.short,  the  court  held  the  remainder  vested  in  the  feudal  sense 
and  not  divested  by  any  of  the  events  which  had  happened. 

28  See  ante,  §  340.  so  172  111.  462. 

29  146  111.  9. 

372 


ClI.  XV]  REVERSIONS    AND    REMAINDERS  [§349 

In  Spatz  V.  Paulus  ^^  the  devise  was  to  the  lineal  descendants 
of  the  life  tenant,  with  a  gift  over  if  any  life  tenant  died  "with- 
out leaving  lineal  descendants  or  descendant  living  at  his  or  her 
death,"  to  the  testator's  lineal  descendants.  The  court  did  not 
construe  lineal  descendants  as  heirs  of  the  body  so  as  to  make 
the  remainder  contingent.  It  rested  its  decision  that  the  re- 
mainder was  contingent  upon  tlie  issue  surviving  the  life  tenant 
entirely  upon  the  gift  over  if  any  child  died  without  lineal  de- 
scendants sui'viving,  and  p(rhaps  on  the  ground  that  in  an- 
other clause  the  remainder  was  in  terms  to  lineal  descendants 
surviving  the  life  tenant.  The  consequence  of  the  remainder 
being  contingent  on  the  lineal  descendants  surviving  the  life 
tenant  was  that  it  was  destroyed  by  the  termination  of  tlie  life 
estate  by  merger. 

§  349.  Where  the  remainder  is  to  the  unborn  children  of  the 
life  tenant  vnth  a  single  gift  over  if  the  life  tenant  die  vdthout 
leaving  children  or  issue  surviving:  Here  the  argument  from 
the  gift  over  in  favor  of  vesting  the  remainder  is  the  same  in 
principle  as  in  the  case  put  in  the  preceding  section.  Prac- 
tically, however,  the  danger  of  a  remainderman  dying  before 
the  life  tenant,  leaving  children,  is  not  acute.  If  the  remainder- 
men are  not  born  when  the  interests  are  created  the  chances 
that  they  will  be  born,  grow  up,  marry  and  have  children  before 
the  death  of  the  life  tenant  are  slight.^'^  That  this  situation 
should  give  the  court  any  liberty  to  imply  or  reflect  back  a 
condition  precedent  in  form  that  the  remainderman  must  sur- 
vive the  life  tenant  seems  to  the  writer  clearly  wrong.  That 
such  an  implication  or  reflection  back  of  a  condition  precedent 
of  survivorship  should  be  effected  or  not,  depending  upon 
whether  the  remainderman  was  not  in  esse  or  was  a  married 
adult,  places  the  subleties  of  construction  upon  a  par  Avith  the 
mysteries  of  the  infinite  extent  of  the  unknowable.  Yet  the 
decisions  of  our  Supreme  Court  show  that  its  views  have  been 
decidedly  in  favor  of  implying  by  reflection  back  from  the  gift 
over  the  condition  precedent  in  form  that  the  remainderman 
survive  the  life  tenant  where  the  remainderman  is  unborn  at 
the  time  the  remainder  is  created. 

31285  111.  82.  life  tenant  is  the  testator's  wife  as 

82  They    are    still    slighter    if    the       in  Golladay   v.  Knock,  235  111.  412. 

373 


§  349]  FUTURE  INTERESTS  [Ch.  XV 

In  Furjiish  v.  Rogers  ^3  the  limitations  were  by  will  and  the 
language  was  very  informal.  The  devise  was  to  the  testator's 
grandniece  of  certain  premises  described,  **all  of  which  is  to 
go  to  her  children,  should  she  marry;  if  she  should  die  child- 
less, then  it  is  to  be  divided  between  her  mother  and  the  rest 
of  my  grandnieces  and  nephews. ' '  It  appears  to  have  been  held 
that  the  grandniece  Jessie  took  a  life  estate  and  that  the  re- 
mainder to  her  children  was  contingent  on  their  surviving  her. 
Hence  the  interest  of  the  one  child  born  to  her  was  a  contin- 
gent remainder  and  could  not  be  sold  by  the  guardian.  No 
condition  precedent  of  survivorship  could  have  been  found  in 
the  limitations  except  by  implication  and  by  reflection  back 
from  the  gift  over.  The  holding  may  have  been  influenced  by 
the  fact  that  the  case  was  decided  at  a  time  when  our  Supreme 
Court  was  holding  that  a  fee  upon  a  fee  could  not  be  created  by 
will.^^  The  court  may  have  thought  that  if  the  remainder  to 
the  children  of  Jessie  was  vested,  the  gift  over,  if  she  would  die 
childless,  would  be  a  fee  upon  a  fee,  and  so  void.  To  get  away 
from  this  unfortunate  result  the  court  may  have  felt  warranted 
in  turning  the  remainder  to  the  children  of  Jessie  into  a  con- 
tingent remainder,  so  that  it  and  the  gift  over  if  Jessie  died 
childless  could  both  be  valid  as  contingent  remainders  in  double 
aspect.  Since  it  has  become  settled  that  a  fee  upon  a  fee  by  will 
is  good  as  an  executory  devise,^^  all  necessity  for  the  construc- 
tion adopted  in  Furnish  v.  Rogers  is  removed  and  the  case  is 
left,  it  is  submitted,  without  any  proper  foundation  for  the 
holding  that  the  remainder  to  the  children  of  Jessie  was  con- 
tingent on  their  surviving  Jessie. 

In  Golladay  v.  Knock,^^  the  remainder  after  a  life  estate  in 
Nancy  was  "to  her  children  after  her  death;  and  if  the  said 
Nancy  does  not  have  children  that  will  live  to  inherit  said 
real  estate,  that  the  said  real  estate,  at  the  death  of  Nancy  and 
her  children,  fall  to  Moses  and  his  heirs."  Nancy  was  the 
testator's  wife.  She  had  no  children  at  the  testator's  death. 
Subsequently  the  widow  died  having  had  one  child  who  lived  to 
be  twenty-three  years  of  age  but  died  childless  prior  to  the 

33 154  111.  569.  overruling    EwiBg    v.    Barnes    and 

34  Ewing  V.   Barnes,  156  111.  61 ;  Silva  v.  Hopkinson. 

Silva  V.  Hopkinson,  158  111.  386.  36  23,5  111.  412. 
33  Glover  v.  Condell,  163  111.  566, 

374 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§349 

death  of  Nancy.  The  principal  question  in  the  case  was  whether 
the  interest  of  Moses  was  alienable  by  deed  during  the  life  of 
Nanc.y.  It  was  held  tliat  it  was  not.  In  the  course  of  the 
court's  opinion  it  said:  "The  clearly  expressed  intention  of  the 
testator  was  to  give  his  wife  a  life  estate  in  the  premises,  with 
a  remainder  in  fee  to  such  of  her  children  as  might  be  living  at 
the  time  of  her  death."  The  question  whether  the  interest  of  the 
child  of  Nancy  was  a  contingent  remainder  in  the  feudal  sense 
was  not  in  any  way  involved.  If  we  assume  it  to  have  been 
vested  at  the  birth  of  the  child,  then  when  that  child  died  her 
vested  remainder  descended,  but  when  the  life  tenant  died  leav- 
ing no  child  the  vested  remainder  was  divested  in  favor  of 
Moses  or  his  heirs.  At  all  times  after  the  birth  of  Nancy's  child, 
Moses  had  a  contingent  shifting  executory  interest  and  the  in- 
alienability of  that  interest  by  deed  infer  vivos  is  the  same  as 
the  inalienability  of  a  contingent  remainder.^"  It  is  submitted 
that  Gollodaij  v.  Knock  cannot  be  used  as  an  authority  in  sup- 
port of  the  proposition  that  the  remainder  to  the  children  in  the 
case  under  consideration  is  contingent  in  a  feudal  sense  and 
destructible  and  inalienable. 

Hill  v.  Hill  ^^  purports  to  follow  Furnish  v.  Rogers  ^^  and 
Golladay  v.  Knock  ^^  and  to  be  distinguished  from  Dxicker  v. 
Burnham^^  and  Hinrichsen  v.  Hinrichsen^'  In  Hill  v.  Hill 
the  limitations  were  by  deed  to  the  daughter  for  life  and  "from 
and  after  her  decease  or  determine  said  estate,  to  the  sole  use, 
benefit  and  behoof  of  the  child  and  children  of  her  body,  their 
heirs  and  assigns  forever;  and  in  the  event  of  the  death  of  the 
said  ]\Iary  Jane  Hill  [the  life  tenant]  leaving  no  child  or  chil- 
dren her  issue  her  surviving,  then  and  in  that  case  to  the  heirs 
at  law  of"  the  grantor.  When  this  deed  was  executed  in  1848  the 
life  tenant  was  a  young  woman.  She  had  two  children  prior  to 
1853  and  a  number  of  others  afterwards.  She  lived  until  1910. 
Her  children  grew  up,  married  and  had  children  and  one  child 
died  before  her,  leaving  children.  Here  then,  as  events  turned 
out,  the  argument  for  vesting  derived  from  the  gift  over  be- 
came a  very  practical  consideration.  If  the  remainder  to  the 
life  tenant's  children  was  not  vested  but  was  subject  to  a  con- 

37  Post,  §  480.  <"  235  El.  412. 

38  264  111.  219.  •*!  146  111.  9;  anie,  §  348. 
33  154   111.569.                                              ••.•172  m.  462;  anfe.  §348. 

375 


§  349]  FUTURE   INTERESTS  [Ch.  XV 

ditiou  precedent  in  form  that  the  children  must  survive  the  life 
tenant,  then  the  children  of  the  child  who  died  before  the  life 
tenant  never  could  take  by  descent  or  devise  from  their  parent. 
This  was  incongruous  in  view  of  the  fact  that  the  only  gift 
over  was  if  the  life  tenant  died  leaving  no  children  at  all.  Never- 
less,  the  Court  held  the  remainder  subject  to  a  condition  prece- 
dent in  form  that  the  remainderman  must  survive  the  life 
tenant.  Hence,  the  remainder  was  contingent  in  the  feudal 
sense  and  inalienable  intei'  vivos  during  the  life  of  the  life  tenant. 
The  point  that  seems  to  have  weighed  most  with  the  court 
was  that  when  the  deed  was  executed  the  remainder  was  to 
"a  class  not  in  existence,  which  might  never  come  into  ex- 
istence." Ducker  v.  Bnrnham^^  was  distinguished  because 
there  the  remainder  was  to  "certain  named  children."  What 
the  court  was  driving  at  was,  it  is  believed,  that  if  the  remainder 
were  to  certain  adults  in  esse  the  danger  of  cutting  out  the  chil- 
dren of  the  remainderman  dying  before  the  life  tenant  would 
be  so  great  as  to  warrant  the  court  in  holding  the  remainder 
vested;  while  if  the  remainder  were  to  a  class  not  in  esse  the 
chance  of  this  would  be  so  slight  that  the  court  need  pay  no 
attention  to  it  and  would  be  required,  therefore,  to  imply  or 
reflect  back  a  condition  precedent  in  form  of  survivorship  from 
the  gift  over.  If  this  line  of  distinction  is  sound  it  also  applies 
to  differentiate  Hill  v.  Hill  from  Hinrichsen  v.  Hinrichsen.  The 
fault  of  the  decision  in  Hill  v.  Hill  is  the  assumption  that 
where  there  is  no  explicit  condition  precedent  in  form  that  the 
remainderman- must  survive  the  life  tenant,  the  court  is  required 
by  some  mysterious  force  to  imply  it  or  reflect  it  back  from  the 
gift  over  unless  there  is  some  positive  context  or  incongruity 
against  implying  it  by  such  reflection  back.  This  position  is 
fundamentally  erroneous.  The  rule  against  implications,  and 
especially  implications  which  make  the  remainder  contingent, 
together  with  the  rule  requiring  a  construction  which  will  vest 
the  remainder,  is  sufficient  to  deny  the  finding  of  such  a  condi- 
tion precedent  in  form  of  survivorship.  When  we  add  the  fact 
that  such  argument  as  is  to  be  found  in  the  gift  over  is  an 
argument  in  favor  of  vesting,  we  should  be  permitted  to  set 
Hill  V.  Hill  down  ^s  wrong— a  decision  not  to  be  submitted  to 

43  146  111.  9. 

376 


Cli.  XV]  REVERSIONS    AND    REMAINDERS  [§350 

until  the  court  has  unequivocally  stood  by  it  in  the  face  of 
criticism."*^ 

§  350.  Where  the  remainder  is  to  named  persona  or  to  a 
class  v^rith  a  single  gift  over  if  any  die  before  the  life  tenant 
leaving-  children  then  to  those  children:  Here  ilHr<'  is  little 
need  for  the  gift  over  if  the  remainder  is  not  subject  to  a  con- 
dition precedent  in  form  that  the  remainderman  survive  the  life 
tenant.  That  is  a  slight  argument  that  the  remainder  is  subject 
to  such  a  condition  precedent  in  form.  Clearly,  however,  it  is 
too  slight  an  argument  to  have  the  effect  of  inserting  by  impli- 
cation and  reflection  back  from  the  gift  over  such  a  condition 
precedent  in  form  when  none  has  been  explicitly  expressed. 
The  rule  against  implications  as  well  as  the  rule  in  favor  of 
vesting  forbids  it.  The  practitioner  should,  therefore,  have 
felt  warranted  in  this  class  of  cases  in  starting  with  a  strong 
prima  facie  assumption  that  there  would  be  found  no  condition 
precedent  in  form  that  the  remainderman  must  survive  the  life 
tenant  and  that  the  remainder  was,  therefore,  vested  but  sub- 
ject to  be  divested.  Yet  the  decisions  of  our  Supreme  Court 
show  a  strong  tendency  to  find  the  existence  of  a  condition  prec- 
edent in  form  that  the  remainderman  must  survive  the  life 
tenant,  so  that  the  remainder  is  contingent  in  the  feudal  sense. 
These  cases  can  best  be  appreciated  if  taken  in  their  chron- 
ological order. 

In  Spengler  v.  Kuhn  ^^  the  limitations  were  equitable  and  to 
A  for  life,  or  until  remarriage,  then  "the  title  to  the  real  estate 
[shall]  become  vested  in  my  children  *  *  *  and  if,  in  the 
meanwhile,  any  or  more  of  my  children  shall  have  died  leaving 
a  descendant  or  descendants,  such  deceased  child's  share  shall 
go  to  his  or  her  issue,  descendant  or  descendants."  The  ques- 
tion arose  whether,  while  the  life  tenant  lived,  the  interests  of 
two  children  passed  to  their  trustee  in  bankruptcy.  It  was  held 
that  the  interests  were  contingent  and  did  not  pass.    This  meant 

■»*  It    may    be    worth    noting    that  been  of  counsel  for  the  appellee  up 

the    first    opinion    of    the    court    iu  to  that  time,   were   dispensed   with; 

Hill  V.  Hill,  written  by  Mr.  Justice  a  rehearing  was  applied  for  by  both 

Oartwright,      held      the      remainder  sides    and    obtained.      The    present 

vested  and  gave  to  the  appellee  two-  opinion  of  the  court  was  the  result, 
sixths  of  the  property  which  he  had  ^5  212  111.  186.     See  also  Security 

acquired  by  the  guardian's  sale.  Insurance  Co.  v.  Kuhn,  207  111.  166. 
The  services  of  the  writer,  who  had 

377 


§  350]  FUTURE   INTERESTS  [Ch.  XV 

that  the  court  found  au  express  condition  precedent  in  form  that 
the  children  to  take  must  survive  the  life  tenant.  No  such  con- 
dition precedent  was  explicitly  included.  It  is  submitted  that 
none  should  have  been  implied  or  reflected  back  from  the  gift 
over.  Furthermore,  the  reference  in  the  will  to  the  remainder 
"vesting"  at  the  termination  of  the  life  estate  might  have  been 
and  should  have  been  held  to  speak  only  of  vesting  in  possession 
or  vesting  indefeasibly.^*^  Such  a  reference  to  "vesting"  is  too 
slight  a  context  upon  which  to  find  an  express  condition  prece- 
dent in  form  of  survivorship  which  wall  cause  the  remainder  to 
be  contingent  in  the  feudal  sense  and  inalienable  and  destructible. 
In  Cummings  v.  Hamilton  *"'  the  limitations  were  in  substance 
to  A  for  life  with  a  direct  devise  of  the  fee  to  B,  C  and  D,  with 
a  gift  over  "in  case  of  the  death  of  either  B,  C  or  D  (prior  to  the 
death  of  my  husband  [the  life  tenant]  or  prior  to  my  decease) 
leaving  a  child  or  children,  then  in  that  case  such  child  or  chil- 
dren, or  the  descendants  of  such  child  or  children  shall  inherit 
the  share  of  the  real  estate  which  would  have  vested  in  their 
parents. "  It  was  held  that  the  remainder  to  B,  C  and  D  was  con- 
tingent upon  their  surviving  the  life  tenant  so  that  no  merger  of 
the  life  estate  occurred  by  the  conveyance  of  the  life  tenant  to 
the  remaindermen  B,  C  and  D.  The  question  of  whether  there 
was  a  merger  raised  the  question  as  to  whether  the  remainder 
was  vested  according  to  the  purely  feudal  conception  of  a  vested 
remainder  or  a  contingent  remainder  according  to  the  purely 
feudal  conception  of  such  a  remainder.  In  support  of  the  deci- 
sion holding  the  remainder  contingent  in  the  feudal  sense  and, 
therefore,  not  subject  to  merger  it  was  urged  that  ' '  would  have 
vested"  indicated  that  the  testator  did  not  regard  the  interest 
of  the  remaindermen  B,  C  and  D  as  vested.  But  "vest"  may 
equally  well  refer  to  "vesting  in  possession"  or  "vesting  inde- 
f easibly. "  *^  So  used  the  word  ' '  vest ' '  produces  no  argument  in 
favor  of  the  remainder  being  subject  to  a  condition  precedent 
in  form  that  the  remainderman  survive  the  life  tenant.  It  is  sub- 
mitted that  it  is  not  sound  or  proper  that  so  slight  and  ambigu- 

46  Chapman    v.    Cheney,    191    111.  *»  Chapman    v.    Cheney,    191    111. 

574;  Lunt  v.  Lunt,  108  111.  307;  574;  Lunt  v.  Lunt,  108  111.  307; 
Burney  v.  Arnold,  134  Ga.  141;  Burney  v.  Arnold,  134  Ga.  141; 
post,  §  354.  post,   §  354. 

*■!  220  111.  480. 

378 


Ch.  XV]  REVERSIONS   AND   REMAINDERS  [§350 

ous  a  special  context  should  overcome  the  general  rule  against 
implications  of  conditions  precedent  in  form  of  survivorship  and 
be  used  to  support  a  construction  which  will  vest  the  remainder. 

In  Brownback  v.  Keister,*^  after  life  estates,  it  was  provided 
that  the  lands  "shall  vest  in  fee  simple  absolutely  in  the  said 
now  living  children  of  my  said  son  Julius  [the  life  tenant]  and 
his  present  wife,  Matilda,  and  their  descendants,  share  and  share 
alike,  the  descendants  of  any  of  said  above  named  children  taking 
the  share  of  their  parents."  As  the  children  of  Julius  had  al- 
ready been  named  there  was  a  direct  gift  to  them  without  any 
explicit  condition  precedent  in  form  of  survivorship.  The  whole 
context  indicated  that  the  gift  to  descendants  was  substitutionary 
and  in  the  event  that  any  child  of  Julius  died  during  the  con- 
tinuance of  the  life  estates  leaving  descendants.  It  wa?  held  that 
the  remainder  to  the  children  of  Julius  was  subject  to  a  condi- 
tion precedent  in  fonn  that  they  survive  the  death  of  the  life 
tenants,  with  the  feudal  consequence  that  the  interests  of  the 
children  were  not  alienable  inter  vivos  during  the  life  of  the  life 
tenants.  It  was,  of  course,  true  that  to  take  indefeasibly  the  chil- 
dren of  Julius  must  survive  the  life  tenants,  but  since  this  is 
expressed  solely  by  inserting  a  condition  subsequent  in  form, 
the  remainder  in  fact  stood  ready,  so  long  as  it  continued  undi- 
vested,  to  take  effect  in  possession  whenever  and  however  the 
preceding  life  estate  determined.  It  was  therefore  vested  in  the 
feudal  sense  and  alienable  inter  vivos.  The  result  reached  by  the 
court  seems  even  less  justifiable  than  that  which  obtained  in 
Cummings  v.  Hamilton. 

In  Northern  Trust  Company  v.  Wheaton  ^^  an  equitable  re- 
mainder was  limited  to  ten  named  beneficiaries  without  any  ex- 
plicit condition  precedent  in  form  of  survivorship.  In  fact,  the 
limitation  of  the  remainder  was  directly  to  the  named  persons. 
Then  there  was  the  following  gift  over:  "In  the  event  of  the 
death  of  any  of  the  ten  persons  above  named  as  beneficiaries 
before  the  interest  in  my  estate  shall  vest  in  them,  leaving  a  child 
or  children  surviving  at  the  time  said  estate  shall  vest,  then  said 
child  or  children  of  such  deceased  person  shall  take  their  par- 
ent's share."  One  of  the  ten  died  before  the  life  tenant,  leaving 
no  child.     It  Avas  held  that  her  interest  was  not  subject  to  any 

49  220  111.  544.  50  1249   m.  606. 

379 


§351]  FUTURE   INTERESTS  [Ch.  XV 

condition  precedent  in  form  that  she  must  survive  the  life  tenant, 
and  therefore  since  the  divesting  event  had  not  occurred  her 
interest  was  indefeasible  and  passed  to  her  heirs  at  laAv  or  de- 
visees. This  looks  at  first  like  a  strong  case  for  the  general  rule 
that  the  remainder  in  question  will  not  be  subject  to  any  condi- 
tion precedent  in  form  that  the  remainderman  survive  the  life 
tenant  bj'  a  process  of  implying  by  reflection  back  from  the  gift 
over  such  a  condition,  and  that  therefore  such  remainders  may 
be  taken  as  prima  facie  vested,  subject  merely  to  be  divested. 
But  upon  a  closer  examination  it  appears  that  the  result  was 
reached  by  referring  ' '  death, ' '  in  the  gift  over  if  the  remainder- 
man died  leaving  children,  to  death  in  the  lifetime  of  the  testator 
exclusively.  The  basis  for  this  was  the  fact  that  death  before 
vesting  was  particularly  mentioned,  so  that  if  ' '  vest ' '  were  used 
in  the  feudal  sense  the  vesting  occurred  at  the  testator's  death 
and  ' '  death  before  vesting ' '  meant  ' '  death  before  the  testator. ' ' 
The  court,  therefore,  avoided  holding  the  remainder  vested  but 
subject  to  a  gift  over  upon  the  remainderman's  death  after  the 
death  of  the  testator  and  in  the  life  of  the  life  tenant.  The  case 
does  not,  therefore,  rebut  the  inference  from  Spengler  v.  Kuhn, 
Cummings  v.  Hamilton  and  Brownhack  v.  Keister,  that  in  this 
class  of  cases  a  condition  precedent  in  form  that  the  remainder- 
man must  survive  the  life  tenant  is  being  regularly  implied  or 
reflected  back  from  the  gift  over,  especially  if  any  reference 
appears  in  the  context  to  the  remainder  "vesting"  at  the  death 
of  the  life  tenant. 

In  Remmers  v.  Remmers  ^^  the  devise  after  a  life  estate  was 
to  the  testator's  sons,  with  a  single  gift  over  if  any  died  before 
the  life  tenant  to  their  children,  if  any,  the  children  to  "take  the 
shares  of  their  deceased  parents."  The  remainder  was  held  to 
be  vested  subject  to  a  gift  over.  The  actual  decision  was  that 
the  remaindermen  could  not  have  specific  performance  against 
the  buyer  because  of  the  gift  over. 

§351.  Suppose  the  remainder  be  limited  "to  the  life  ten- 
ant's children  who  survive  the  life  tenant  and  in  case  any  die 
leaving-  children  to  such  children,"  is  the  ultimate  gift  over 
also  contingent  upon  the  grandchildren  surviving  the  life 
tenant?  The  writer's  answer  would  be  no.  There  is  no  ex- 
plicitly expressed  condition  precedent  in  form  that  the  grand- 
si  280  111.  93. 

380 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§351 

children  survive  the  life  tenant.  The  rule  against  implications 
of  such  contingencies  forbids  it.  The  rule  against  construing  re- 
mainders to  be  contingent  and,  tlierefore,  destructible  and  in- 
alienable forbids  it.''-  Such  inferences  as  may  be  made  from 
the  context  are  against  the  finding  of  any  condition  precedent  of 
survivorship.  The  gift  is  an  ultimate  one.  There  is  no  further 
gift  over.  If,  therefore,  the  additional  contingency  of  survivor- 
ship be  added,  the  danger  of  an  intestacy  is  greatly  increased. 
There  is  also  the  remote  possibility  that  those  ultimately  to  take 
may  die  in  the  lifetime  of  the  life  tenant  leaving  children.  These 
would  be  cut  off  if  the  contingency  of  survivorship  be  found  to 
exist.  The  fact  that  the  ultimate  gift  over  is  subject  to  one 
contingency,  namely,  that  the  life  tenant's  children  die  in  the 
life  tenant's  lifetime  leaving  children,  does  not  in  and  of  itself 
produce  the  slightest  argument  that  another  and  different  con- 
tingencj'  is  to  be  added.  Nor  is  there  any  logic  in  the  assertion 
that  a  contingency  of  survivorship  applicable  to  the  children  of 
the  life  tenant  can  be  reflected  forward  to  the  next  gift.  What- 
ever logic  there  may  be  in  reflecting  a  condition  of  survivorship 
back  from  gifts  over,  no  similar  process  justifies  the  reflection  of 
a  condition  of  survivorship   forward.^^ 

These  views,  while  perhaps  not  yet  permanently  discarded  by 
our  Supreme  Court,  have  certainly  up  to  the  present  time  not 
been  followed. 

In  Brechhellcr  v.  Wilson  ^^  the  remainder  after  a  life  estate 
in  the  wife  was  limited  to  "such  of  my  four  children  [naming 
them]  as  may  survive  my  said  wife,  or  the  issue  of  any  of  my  said 
children  who  may  have  died  before  my  wife ;  such  issue  to  take 
the  share  which  would  have  belonged  to  the  parent ;  and  in  the 
event  of  the  death  of  any  one  or  more  of  my  said  four  children 
without  issue  before  the  death  of  my  said  wife  then  his,  her  or 
their  share"  shall  go  to  the  survivors  and  the  children  of  any 
who  may  have  died  leaving  issue.  Before  the  life  tenant 's  death 
one  child  of  the  testator  died  leaving  a  child  who  also  died  before 
the  life  tenant.     It  was  held  that  no  interest  passed  by  descent 

52  The  English  cases  seem  to  have  ders  but  shifting  executory  devises 
reached  results  in  accordance  with  makes  no  difference  because  such 
these  views.  Theobald  on  Wills,  interests  are  valid  by  will,  and  also 
7th  ed.  678.  by    deed,    taking    effect    under    the 

53  The  fact  tliat  the  interests  of  Statute  of  Uses.  Post,  §§  462,  467. 
the  grandchildren  were  not  remain-  ^*  228  111.  502. 

381 


§  352]  FUTURE   INTERESTS  [Ch.  XV 

from  the  grandchild  because  his  interest  was  also  contingent  on 
surviving  the  life  tenant. 

In  Breivick  v.  Anderson^^  the  testator  limited  the  remainder, 
after  a  life  estate  in  the  wife,  to  his  children  without  any  ex- 
press condition  precedent  in  form  that  they  must  survive  the 
life  tenant,  and  "and  in  case  of  the  death  of  any  of  my  chil- 
dren before  the  distribution  of  my  estate,  then  in  case  they  have 
left  at  said  time  of  distribution  any  living  issue,  then  said  child 
or  children  to  take  the  part  of  my  deceased  child  or  children." 
When  the  will  was  made  one  child  of  the  testator,  Josephine, 
was  dead,  leaving  a  daughter  Clara.  At  the  testator's  death, 
therefore,  Josephine's  interest  was  eliminated  and  there  was  a 
direct  and  immediate  remainder  (subject  to  the  life  estate)  to 
Clara,  with  an  express  condition  precedent  that  she  must  be 
alive  at  the  time  of  the  distribution  of  the  estate,  which  meant 
the  death  of  the  life  tenant.  The  case,  therefore,  is  a  plain  one 
of  a  remainder  limited  with  an  express  condition  precedent  in 
form  that  the  remainderman  survive  the  life  tenant.  That  suf- 
ficiently explains  the  result  reached. 

§  352.  Suppose  there  is  first  a  contingent  remainder  to  the 
life  tenant's  surviving  children  or  to  her  lineal  heirs  and 
then  a  remainder  is  limited  to  a  class  upon  the  life  tenant's 
dying  without  leaving  children  or  issue — Is  the  second  re- 
mainder to  the  class  also  contingent  upon  the  remainderman 
surviving  the  life  tenant?  The  reasons  for  answering  this  in 
the  negative  are  the  same  as  those  set  out  in  the  preceding  sec- 
tion. The  cases  do  not  differ  in  any  material  respect.  Yet  our 
Supreme  Court  has  held  the  ultimate  remainder  to  be  subject 
to  a  condition  precedent  in  form  that  the  remaindermen  survive 
the  life  tenant. 

In  Brury  v.  Drury  ^^'  the  limitations  were  to  Myrtle,  a  grand- 
daughter for  life.  "At  her  death  the  fee  simple  title  to  all  of 
said  lands  shall  pass  to  and  become  vested  in  the  heirs  of  her 
body,  and  in  case  of  her  death  without  a  child  or  children  the 
title  tho'cto  shall  become  so  vested  in  my  great-grandchildren." 
Myrtle  died  in  1912  without  issue.  Gertrude,  one  of  the  testa- 
tor's great-grandchildren  in  esse  at  the  time  of  his  death  died 
prior  to  the  death  of  the  life  tenant  and  hei-  heirs  at  law  claimed. 
It  was  held  that  they  were  not  entitled  because  Gerlrudc's  re- 

55  267  111.   169.  50  271   111.   33G. 

382 


ClI.  XVJ  KEVERSIONS   AND  REMAINDERS  [§353 

mainder  as  a  groat-grandchild  was  subject  to  a  condition  pre- 
cedent in  form  that  she  should  survive  the  life  tenant.  The 
court  placed  its  decision  upon  an  inference  in  favor  of  the  con- 
tingency drawn  from  the  fact  that  the  gift  was  to  a  class.  It 
is  left  to  §  353  to  deal  with  the  soundness  of  this  position. 

In  BlacJcstone  v.  Althonse;'~  the  devise  was  to  A  in  fee  with 
an  executory  devise  over  in  ease  "A  died  without  issue,"  in 
which  event  the  land  was  to  be  sold  and  the  proceeds  divided 
"among  my  brothers  and  sisters  and  John  Smith  Blackstone 
and  Ellen  Ilartman."  The  gift  over  took  effect  and  the  ques- 
tion arose  whether  the  objects  of  the  gift  over  must  have  sur- 
vived the  death  of  the  first  taker.  It  was  held  that  they  need 
not  do  so.  No  condition  precedent  of  survivorship  was  to  be 
found.  The  fact  that  there  was  one  express  condition  precedent 
that  the  first  taker  must  die  without  issue  did  not  give  rise  to 
a  further  condition  of  survivorship.  The  court  held  that  the 
gift  was  not  to  a  class, ^^  so  that  no  inference  of  a  condition  of 
survivorship  could  arise  from  that  fact. 

§  353.  Effect  on  vesting-  of  the  fact  that  the  remainder  is 
limited  to  a  class:  As  already  explained,  the  court  in  Hill  v. 
Hill,^^  where  the  remainder  was  held  to  be  contingent  upon  the 
remainderman  surviving  the  life  tenant,  was  not  so  much  em- 
phasizing the  fact  that  the  remainder  was  to  a  class  as  that  it 
was  to  persons  unborn  at  the  time  the  interests  were  created.*'" 
In  Brewkk  v.  Andei'son,*^^  the  court  had  no  need  to  rely  upon 
the  fact  that  the  gift  was  to  a  class  in  order  to  make  it  contingent 
upon  the  members  of  the  class  surviving  the  life  tenant.'^-  In 
Drury  i).  Druryf'-^  however,  the  court  placed  its  holding  that 
the  remainder  was  contingent — and  apparently  this  was  the 
only  ground  for  it — upon  a  rule  announced  by  the  court  as  fol- 
lows: "*  *  *  the  rule  is  that  where  the  gift  is  not  in  terms 
immediate  and  so  confined  and  a  gift  to  a  class  is  postponed 
pending  the  termination  of  a  life  estate,  those  members  of  the 
class,  and  those  only,  take  who  are  in  existence  at  the  death 
of  the  life  tenant.'"'^     It  is  submitted  that,  whatever  the  rule 

57  278  111.  481.  «i  267  111.  169. 

58  As    to    this    point,    see    post,  *^- Ante,  §351. 
§556.  63  271   111.   336. 

59  264  111.   219.  «*  This    was   repeated    elaborately 
en^?i?e,  §349.                                            in   Blackstone    v.    Althouse,   278   111. 

383 


§  353]  FUTURE   INTERESTS  [Ch,  XV 

may  be  with  regard  to  bequests  of  personal  property  to  a  class 
in  futuro,^^  no  such  rule  as  that  laid  down  in  Drury  v.  Drury  ex- 
ists where  remainders  of  real  estate  are  concerned.  Whether 
a  remainder  to  a  class  is  contingent  upon  the  members  of  the 
class  surviving  the  life  tenant  depends  upon  whether  such  a 
condition  precedent  in  form  is  found  in  the  language  used.  No 
implication  by  reflecting  back  such  a  contingency  should  be  per- 
mitted in  the  face  of  the  rule  that  the  courts  construe  the  re- 
mainder vested  if  possible.  The  fact  that  the  gift  is  to  a  class 
as  such  is  not  an  argument  of  anj^  particular  strength  that  the 
gift  is  subject  to  a  condition  precedent  that  the  members  of 
the  class  must  survive  the  life  tenant. 

Where  the  limitations  are  to  A  for  life,  remainder  to  the 
children  of  A  with  no  gift  over,  our  Supreme  Court  has  twice 
emphatically  held  that  the  remainder  was  not  contingent  on 
the  members  of  the  class  surviving  the  life  tenant.*^"  The  fact 
that  the  gift  was  to  a  class  was  urged  as  an  argument  for  find- 
ing the  contingency  of  survivorship  and  specifically  denied  any 
such  effect  by  the  court.  This  would  seem  to  be  a  fair  indica- 
tion that  in  dealing  with  remainders  of  real  estate  the  fact  that 
the  gift  was  to  a  class  was  not  an  argument  for  finding  the 
remainder  subject  to  a  condition  precedent  that  the  members 
of  the  class  must  survive  the  life  tenant. 

If  the  remainder  is  to  a  class  "at"  twenty-one  it  is  still  vested 
just  as  if  it  were  to  an  individual  "at"  twenty-one.*^'^  This 
shows  that  the  mere  fact  that  a  gift  is  to  a  class  in  and  of  itself 
does  not  furnish  an  argument  of  any  weight  that  the  gift  to  the 
class  is  subject  to  a  condition  precedent  that  the  members  of 
the  class  survive  the  life  tenant. 

Now,  suppose  the  remainder  is  to  a  class  with  gifts  over  on 
one  or  more  contingencies.  In  a  number  of  cases  we  find  our 
Supreme  Court  holding  the  remainder  vested,  indestructible  and 
alienable.  This  means  that  the  court  refused  to  find  that  be- 
cause the  remainder  was  to  a  class  the  remainder  was  subject 
to  a  condition  precedent  in  form  that  the  remainderman  must 

481,  487-489,  but  the  gift  was  held  Thomas    v.    Thomas,    247    111.    543. 

not  to  be  one  to  a  class.    Whether  Such  a  decision  as  Conner  v.  John- 

that   was   correct   or   not,   see   post,  son,  2  Hill  Eq.    (S.   C.)   41,  to  the 

§  556.  contrary  only  shows  that  courts  can 

65Pos<,  §§523,  524.  err. 

««  Carter  v.  Carter,  234  111.   507;  *'■!  Ante,  §§333,  335. 

384 


Ch.  XV]  REVERSIONS    AND    REMAINDKRS  [§355 

survive  tlic  life  tenant.'"'*  Where  tlie  remainder  in  sucli  a  case 
is  held  to  be  subject  to  a  condition  precedent  of  survivorship 
it  is  not  because  the  gii"t  is  to  a  class  but  because  such  a  con- 
tingency is  imi>lied  by  reflection  back  from  gifts  over.""  It 
is  not  till  we  read  the  dictum  of  Jirewick  v.  Anderson  and  the 
decision  of  IJrury  v.  Drxrij  that  we  find  our  Supreme  Court 
announcing  a  rule  that  a  gift  to  a  class,  as  such,  has  the  effect 
of  making  the  remainder  contingent  upon  the  remainderman 
surviving  the  life  tenant.  The  propriety  of  that  step  is,  it  is 
submitted,  subject  to  the  gravest  (lonl)t. 

§  354.  Effect  of  special  directions  that  the  remainder  is  to 
"vest"  or  "become  absolute"  on  the  death  of  the  life  tenant: 
Such  expressions  are  almost  always  ambiguous.  They  may  mean 
"vest  in  possession"  or  "vest  indefeasibly"  or  "vest  in  in- 
terest." The  first  two  meanings  are  consistent  with  vesting 
in  the  feudal  sense,  subject  to  the  life  estate,  in  which  case 
the  remainder  is  not  subject  to  any  condition  precedent  in  form 
that  the  remainderman  must  survive  the  life  tenant.  The  fact 
that  the  courts  lean  in  favor  of  construing  remainders  vested 
rather  than  contingent  would  suggest  that  such  expressions  re- 
ceive meanings  which  permit  the  remainder  to  be  vested  in  the 
feudal  sense.'^*^  Nevertheless,  there  are  cases  where  directions 
as  to  vesting  at  the  death  of  the  life  tenant  have  been  used  as 
the  basis  for  an  inference  in  favor  of  the  remainder  being  con- 
tingent on  the  remainderman's  surviving  the  life  tenant.'^  In 
Northern  Trust  Co.  v.  Whraton,''^  where  there  was  a  gift  over 
if  the  remainderman  died  before  the  remainder  "vested,"  the 
court,  by  taking  the  feudal  definition  of  vesting,  found  that 
the  remainder  vested  at  the  death  of  the  life  tenant,  so  that 
"die"  meant  "die  before  the  testator." 

§  355.    Whether  a  future  interest  is  a  vested  remainder  sub- 
ject to  a  charge  or  a  springing"  executory  interest  contingent 

csSi.ldons    V.    Coi:krell,    131    111.  White     r.     Willaid,    232    111.    4G4; 

653;    Ducker   v.   Burnham,    146    111.  Chapman    v.    Cheney,    191    111.    rj74; 

9;     Hinrichsen    v.    Hinrichsen,    172  Lunt  v.  Lunt,  108  111.  307;   Buriiey 

111.  462;   Pingrey  v.  Rulon,  246  111.  v.  Arnold,  134  Ga.  141. 
109;    Lachenmyer  v.   Gehlbach,   266  7i  Spengler  v.  Kuhn,  212  111.  186; 

111.  11.     See  also  Holland  v.  Wood,  Cummings  v.  Hamilton,  220  111.  480, 

L.  B.  11  Eq.  91.  (iiite,   §350;    Brownback  v.  Keister, 

«9  J/ife.    §  350.  220  111.  544,  ante,  §  350. 

70  Phillips  V.  (lannon,  240  111.  98;  "-249   111.  606. 

Kales  Fut.  Int.— 25  335 


^  356]  FUTURE   INTERESTS  [Ch.  XV 

upon  the  one  to  whom  it  is  limited  paying'  a  sum  after  the 
termination  of  the  life  estate:  In  Jacobs  v.  Ditz,"^'-^  after  a 
life  estate  there  was  a  "devise  to  A  with  the  direction  that  "be- 
fore he  shall  receive  the  farm"  he  shall  pay  to  the  testator's 
daughter  a  certain  sum  and  upon  filing  receipts  of  such  pay- 
ments "he  shall  have  the  above  described  lands  under  this  will." 
Following  the  cases  where  a  devise  is  made  without  any  pre- 
ceding estate,  on  a  condition  in  form  precedent  that  money  be 
paid,  and  where  the  devise  is  held  to  be  an  immediate  one,  sub- 
ject to  a  charge,""'  there  would  seem  to  have  been  a  fair  infer- 
ence that  the  future  interest  created  was  a  vested  remainder 
subject  to  such  a  charge.  The  court,  however,  held  that  there 
was  a  condition  precedent  to  the  taking  of  any  interest  and 
since  the  condition  must  happen  after  the  termination  of  the 
life  estate,  there  was  created  not  a  remainder,  but  a  springing 
future  interest,"'"^  which  was  indestructible. 

§  356.  Cases  dealing  with  whether  there  is  a  condition 
precedent  in  form  that  the  remainderman  survive  the  life  ten- 
ant where  personal  property  is  involved,  are  not  authoritative 
where  real  estate  is  involved :  In  England  the  question  whether 
the  legal  remainder  was  subject  to  a  condition  precedent  that 
the  remainderman  survive  the  life  tenant  was  determined  for 
the  most  part  by  the  common  law  courts  as  distinguished  from 
the  court  of  chancery.  The  attitude  of  the  common  law  judges 
in  dealing  with  the  question  was  greatly  influenced  by  the  fact 
that  a  contingent  remainder  was  subject  to  the  feudal  rule  of 
destructibilit}^  which  defeated  the  intent  of  the  testator  or  set- 
tlor and  was  also  inalienable.  For  these  reasons  the  common 
law  courts  refused  to  find  conditions  precedent  by  any  doubt- 
ful process  of  interpretation  or  implication  or  reflection  back 
from  gifts  over.  They  steadily  enforced  the  rule  that  all  doubts 
were  to  be  resolved  in  favor  of  a  construction  which  made  the 
remainder  vest(>d. 

The  same  question  arising  in  regard  to  wills  of  personalty 
came  up  as  a  matter  of  course  in  the  court  of  chancery.  There 
was  no  rule  of  destructibility  applicable  to  personal  property. 
The  chancellors  not  only  did  not  follow  the  attitude  of  the  com- 

73  260  111.  98.  ">  Post,  §  442. 

"*  Ante,  §  222.     See  also  Rermtiers 
V.  Remmers,  280  111.  93. 

386 


Ch.  XV]  HKVEHSIONS    AN'I)    RKMAINDEHS  [§'^'>'^ 

mon  law  courts  but  tliey  were  much  under  the  intlueiicc  of  the 
civil  or  Roman  law  regarding  tiie  construction  of  l)e(iuests  of 
persoiuil  property.  Rules  as  to  when  a  bequest  of  jx-rsonal 
property  payable  at  a  future  time  was  subject  to  a  condition 
precedent  of  survivorship  were  applied,  which  were  utterly  for- 
eign to  the  common  law  courts  when  remainders  of  real  estate 
were  under  consideration.  On  the  whole,  the  court  of  chancery 
was  accustomed  to  find  a  condition  that  the  legatee  must  sur- 
vive the  period  of  distribution  far  more  easily  in  regard  1o 
bequests  of  personalty  than  the  common  law  courts  ever  did  as 
to  remainders  of  real  estate."*^ 

There  is,  therefore,  a  practical  necessity  for  keeping  separate 
and  distinct  the  cases  dealing  with  remainders  of  real  estate 
and  those  dealing  with  limitations  of  personal  property  after 
life  interests  where  the  (piestion  whether  the  future  interest  is 
subject  to  a  condition  precedent  of  survivorship  is  involved. 
The  cases,  therefore,  which  deal  with  whether  such  a  condition 
attaches  to  bequests  of  personal  property  payable  in  the  future 
will  be  considered  exclusively  in  a  subsequent  chapter  on  vesting 
of  legacies.  To  apply  the  attitude  developed  in  the  chancery 
court  with  regard  to  bequests  of  per.sonal  property  to  legal  re- 
mainders is  hopelessly  to  confuse  the  proper  solution  of  the 
problems  of  construction  relating  to  the  vesting  of  remainders. 
Tt  may  l)e  desira])le  to  have  uniform  rules  of  construction  re- 
lating to  remainders  and  futui-e  interests  analogous  to  remain- 
ders after  life  estates  in  both  realty  and  personalty.  If  so,  it  is 
suggested  that  all  limitations  of  personalty  analogous  to  those 
of  remainders  after  life  estates  be  treated  as  remainders  of 
realty  have  been  handled — thus  eliminating  conditions  pre- 
cedent of  survivorship  in  gifts  of  personalty  unless  the  same 
explicitly  appear. 

TITLE  VII. 

THE  NEW  YORK  STATUTORY  DISTINCTION  BETWEEN  VESTED 
AND  CONTINGENT  REMAINDEES,  USED  TO  DETERMINE  THE 
ALIENABILITY  OR  INALIENABILITY  OF  REMAINDERS,  IS  NOT 
IN  FORCE  IN   ILLINOIS. 

§  357.  The  New  York  statutory  distinction  betw^een  vested 
and  contingent  remainders:    At  an  early  date  the  common  law 

'« Post.    Cli.    XX    on    Vesting    of 
Legacies. 

387 


§  357]  FUTURE   INTERESTS  [Ch.  XV 

distinction  between  vested  and  contingent  remainders  was 
cliangred  in  New  York  b}^  statute.  This  act  was  subsequently 
copied  in  Wisconsin.  The  New  York  act  ""^  is  as  follows :  ' '  Fu- 
ture estates  are  either  vested  or  contingent.  They  are  vested, 
when  there  is  a  person  in  being,  who  would  have  an  immediate 
right  to  the  possession  of  the  lands  upon  the  ceasing  of  the  in- 
termediate or  precedent  estate.  They  are  contingent,  whilst 
the  person  to  whom,  or  the  event  upon  which,  they  are  limited 
to  take  effect  remains  uncertain."  Under  this  act  some  re- 
mainders were,  and  indeed  must  have  been,  held  to  be  vested, 
which  under  the  common  law  were  contingent.  For  instance, 
a  remainder  to  such  children  of  the  life  tenant  as  survive  the 
life  tenant,  was  held  to  be  vested  as  soon  as  any  child  was  born.'^^ 
In  such  a  case  the  child  in  esse  can  say  that  it  "would  have 
an  immediate  right  to  the  possession  of  the  lands  upon  the  ceas- 
ing of  the  precedent  estate" — that  is,  if  the  precedent  estate 
should  determine  at  that  time.  So,  a  remainder  to  the  "heirs 
at  law"  of  the  life  tenant  (the  rule  in  Shelley's  case  not  apply- 
ing) M'ould  be  a  vested  remainder  in  those  persons  who  at  any 
particular  time  would  be  entitled  as  heirs  if  the  life  tenant 
should  die  at  that  time.''''' 

It  would,  of  course,  have  been  an  entirely  futile  and  academic 
determination  that  a  remainder  was  vested  under  the  New 
York  statutory  definition  unless  such  a  determination  had  some 
consequences  which  did  not  obtain  at  common  law.  Hence  the 
New  York  courts  held  that  the  statute  which  caused  remainders 
to  be  vested  which  at  common  law  were  contingent  also  required 
those  vested  remainders  to  have  some  of  the  attributes  at  least 
of  common  law  vested  remainders,  and  one  of  these  was  the 
attribute  of  alienability  by  quit  claim  deed  and  by  execution 
sale.  The  New  York  courts,  therefore,  held  that  a  remainder 
to  the  "heirs"  of  the  life  tenant  (the  rule  in  Shelley's  case  not 
applying)  was  not  only  vested  but  had  the  attribute  of  aliena- 
bility and  was  transferable  during  the  life  of  the  life  tenant 

"  N.  y.  Eev.  Stats.,  pt.  2,  ch.  1,  "  Mead  v.  Mitchell,  17  N.  Y.  210, 

tit.   2,   §13.  213;    Sheridan   v.   House,   4   Keyes, 

T8  Connelly  v.  O'Brien,  166  N.  Y.  (N.    Y.    Ct.    App.)    569;    Moore    v. 

406;   In  re  Moran 's  Will,  118  Wis.  Littel,  41  N.  Y.  66;  House  v.  Jack- 

177.  son,  50  N.  Y.  161. 

388 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§  357 

by  execution  sale,^"  and  by  a  deed   williout  covenants  of  war- 
ranty."'    It  also  held  that,  upon  the  transfer  by  the  remainder- 
man to  the  life  tenant,  the  latter  took  by  merger  a  vested  fee  in 
which  the  wife  would  have  dower.«2     The  courts  have,  however, 
always   recof^nized   that   these   results   following  from   the   New 
York  statutory  definition  of  a  vested  remainder,  were  different 
from  tiie  results  properly  reached  at  common  law  under  the 
common  law  distinction  between  vested  and  contingent  remain- 
ders, and  that  the  result  in  New  York  rested  entirely  upon  the 
New   York   statute.     Thus   in    Coster  v.   Lorillard,^^   the   New 
York  court  in  referring  to  the  distinction  between  contingent 
and  vested  remainders,  as  defined  in  the  New  York  statute,  said : 
"These  definitions  of  vested  and  contingent  remainders  are  very 
different   from   the  common   law  definitions  of  these  estates." 
The  Wisconsin  court  in  In  re  Moran's  Will,^-^  notices  at  length 
that  the  distinction  between  vested  and  contingent  remainders 
as  set  forth  in  the  New  York  statutes,  and  copied  in  the  Wis- 
consin statutes,  is  very  different  from  the  common  law  distinc- 
tion.    The  Alabama   court,  having  been  misled  into  thinking 
that  the  New  York  statutory  distinction  was  the  common  law 
distinction,  has  frankly  acknowledged  its  mistake  and  empha- 
sized the  fact  that  the  New  York  cases  are  justifiable  only  under 
the  New  York  statutory  definition. ^^  The  extent  to  which  the  New 
York  courts  will  go  in  applying  the  novel  statutory  definition 
and  giving  to  common  law   contingent  remainders  the   conse 
quences  of  common  law  vested  remainders  is  not  very  clear.    In 
Hennessy  v.  Patterson,^^  the  New  York  Court  of  Appeals  had 
under  consideration  limitations  to  A  for  life,  then  to  A's  i.ssue, 
and  in  default  of  such  issue,  to  B  in  fee.    It  declared  that  even 
while  A  had  no  issue,  B's  remainder  was  a  contingent  and  not 
a  vested  remainder,  even  under  the  New  York  statutory  defini- 
tion.  So  in  HaU  v.  La  France  Fire  Engine  Co.,^'  it  was  declared 
that  a  conveyance  to  A  for  life  "and  at  her  death  to  the  heir  or 
heirs   of  her   body   her   surviving,"    created   a   contingent   re- 
mainder.   Whether  the  New  York  courts  would  call  a  remainder 

«"  Sheridan  r.  House,  4  Keyes  (N.  s-*  118  Wis.  177. 

Y.  Ct.  App.)  569.  85  Smaw  v.  Young,  109  Ala.  528. 

81  Moore  v.  Littcl,  41  N.  Y.  66.  88  85  N.  Y.  91,  104. 

82  House  V.  Jackson,  50  N.  Y.  161.  8-  158  N.  Y.  570. 

83  14  Wend.    (N.  Y.)    265. 

389 


■^  :J58]  FUTURE   INTERESTS  [Ch.  XV 

vested  and  indestructible,  which  the  common  law  called  con- 
tingent and  destructible,  will  probably  always  remain  a  mystery, 
since  the  destructibility  of  contingent  remainders  was  abolished 
in  New  York  by  special  statute  at  an  early  date. 

§  358.  The  Illinois  cases  regularly  and  without  exception 
assume  the  common  law  or  feudal  distinction  between  vested 
and  contingent  remainders  to  be  in  force  in  this  State  and 
endeavor  to  apply  it,  and  have  explicitly  rejected  the  New 
York  statutory  distinction:  Under  the  New  York  statutory 
definition  a  remainder  to  B  and  his  heirs  if  B  survive  A,  the 
life  tenant,  is  vested  and  alienable  by  quit  claim  deed  and  exe- 
cution sale.*^^  This  is  because  B  is,  during  his  life,  ready  to 
take  at  all  times  if  the  particular  estate  terminates  by  the  life 
tenant's  death.  On  the  other  hand,  b}'  the  common  law  dis- 
tinction the  remainder  is  contingent,  because  it  may  not  be 
ready  to  take  eflfect  in  possession  whenever  and  however  the 
life  estate  terminates — as,  for  instance,  if  the  life  estate  termi- 
nates prematurely  by  merger.^''  Hence  the  frequent  holdings 
of  the  Illinois  Supreme  Court  that  such  a  remainder  is  con- 
tingent ^"  are  decisions  in  favor  of  the  common  law  distinction 
between  vested  and  contingent  remainders  and  repudiate  the 
New  York  statutory  definition  of  a  vested  remainder. 

It  is  equally  clear  that  under  the  New  York  statutory  defini- 
tion a  remainder  to  B  and  his  heirs  on  the  collateral  contingency 
of  the  life  tenant  dying  without  leaving  issue  or  children,  is  a 
A'ested  remainder  during  the  time  the  life  tenant  is  alive  but 
has  no  issue  or  children  living.     This  is  because  under  such 

88  Connelly  v.  O'Brien,  116  N.  Y.  Temple  v.  Scott,  143  111.  290;  Cha- 
406;  In  re  Moran's  Will,  118  Wis.  pin  v.  Crow,  147  111.  219;  Phayer 
177,  '  --m  V.  Kennedy,  169  111.  360;  Madi- 
80  Doe  V.  Scudamore,  2  B.  &  p!  son  v.  Larmon,  170  111.  65;  Thomp- 
289;  Abbott  v.  Jenkins,  10  Serg.  &  son  v.  Adams,  205  111.  552;  Speug- 
E.  (Pa.)  296;  Taylor  v.  Taylor,  ler  v.  Kuhn,  212  111.  186;  Starr  v. 
118  la.  407;  Young  v.  Young,  89  Willoughby,  218  111.  485;  Cummings 
Va.  675;  Nichols  v.  Guthrie,  109  v.  Hamilton,  220  111.  480;  Brech- 
Tenn.  535;  Henderson  v.  Hill,  77  beller  v.  Wilson,  228  111.  502;  Rpb- 
Tenn.  26;  Roundtree  v.  Eoundtree,  ertson  v.  Guenther,  241  111.  511; 
26  S.  C.  450,  471.  People  v.  Byrd,  253  111.  223;  Kobe- 
no  City  of  Peoria  v.  Darst,  101  son  v.  Cochran,  255  111.  355;  Wake- 
Ill.  609;  Haward  v.  Peavey,  128  111.  field  v.  Wakefiehl,  256  111.  296;  ante, 
430;   Walton  v.  Follansbee,  131   111. J^§  309. 


147;    Mittel   v.    Karl,    133    111.    65  ;| 

390 


Ch.  XV]  UKVKKSIOXR    AND    REMAINDERS  [§358 

cii-cuinslaiicos  tlie  roin<iiii(lci'iiiaii  stands  ready  to  lake  at  any 
particular  time  in  ease  the  lil'e  tenant  dies  at  that  time.  By 
the  common  hiw,  liowcvei-,  the  reniaiiKh'i-  is  contingent,  because 
by  possibility  the  life  estate  may  terminate  (viz:  ]\v  merger  or 
forfeiture)  before  A's  death  without  leaving  children  or  issue, 
and  hence  before  the  remainder  is  ready,  according  to  the  terms 
of  its  creation,  to  take  etfeet  in  possession." ^  In  Walton  v.  Fal- 
latisbee,^''^  the  remainder  was  limited  to  the  children  of  the  life 
tenant  in  case  the  life  tenant's  husband  should  survive  her. 
Here,  then,  the  remainder  was  subject  to  a  precedent  collateral 
contingency.  It  was  held  contingent  in  accordance  with  the  com- 
mon law  distinction.  Tn  Boatman  v.  Boatman,^^  where  the  re- 
mainder in  fee  was  limited  in  case  the  life  tenant  died  without 
leaving  issue,  our  Supreme  Court  held  it  to  be  vested  and  alien- 
able by  a  quit  claim  deed.  This  was  in  fact  an  application  of  the 
New  York  statutory  definition  and  a  repudiation  of  the  com- 
mon law  rule.  In  Golladay  v.  Knock,''^  however,  the  court  held 
the  remainder  contingent  and  inalienable  by  deed,  thus  return- 
ing to  the  common  law  distinction.  Boatman  v.  Boatman,^^ 
and  Chapin  v.  Nott,'^^'  were  in  terras  overruled  so  far  as  the}' 
stood  for  any  different  result. 

It  has  been  regularly  held,  in  accordance  with  the  New  York 
statutory  definition,  that  a  remainder  to  the  heir  or  heirs  of  the 
body  of  the  life  tenant  (the  rule  in  Shelley's  case  not  applying) 
was  vested  in  those  who  at  any  time  answered  the  description 
of  heirs  or  heirs  of  the  body  of  the  life  tenant  if  the  life  tenant 
were  then  to  die.""  Obviously  under  the  common  law  distinction 
the  remainder  is  contingent  because  the  life  estate  may  possibly 
terminate  before  the  life  tenant's  death  and  hence  Ix^fore  the  re- 

siPlunket  v.  Holmes,  1  Lev.  11;  "^  i;5i   m.  147. 

Loddington    v.   Kime,   1    Salk.   224;  93  198  111.  414,  approved   in  Cha- 

Purefoy   v.   Eogers,   2    Saund.    .'^80;  pin  r.  Nott,  20.3  111.  341. 

Egerton  v.   Massey,  3   C.   B.   N.   S.  ^*  235    111.    412.      See    also    cases 

338;    Stump    v.    Findlay,    2    Rawle  cited,  fl"/e,  §  309. 

(Pa.)    168;    Waddell    v.    Rattew,    5  "5  198  111.  414. 

Rawle    (Pa.)    231;   Rodfern   v.  Mkl  96  203  111.  341. 

dletou.  Rice,  L.   (S.  C.)   459;   Craig  97  Mead    v.    Mitchell,    17    N.    Y. 

V.  Warner,  5  Mackey    (D.  C.)   460;  210,    213;     Sheridan    v.    House,    4 

McElwee     v.     Wheeler,     10     S.     C.  Keyes,  569;  Moore  v.  Littel,  41  N. 

(Rich.)    392;    Faber    v.    Police,    10  Y.  66;   House  v.  Jackson,  50  N.  Y. 

S.  C.  (Rich.)  376;  Watson  v.  Dodd,  161. 
68  N.  C.  528;  id.,  72  N.  C.  240. 

391 


§  359]  FUTURE   INTERESTS  [Ch.  XV 

inainder  is  ready  to  take  effect  in  possession.^^s  Our  Supreme 
Court  has  regularly  held  that  the  remainder  was  contingeijt,^^ 
thereby  applying  the  common  law  distinction  and  repudiating  the 
New  York  statutory  distinction  between  vested  and  contingent 
remainders. 

^  359.  Cases  which  it  is  claimed  show  the  adoption  in  Illi- 
nois of  the  New  York  statutory  distinction,  in  every  instance, 
excepting  one,  will  be  found  to  reach  a  proper  result  without 
applying  the  New  York  doctrine,  and  the  one  case  which  did 
apply  the  New  York  statutory  distinction,  and  another  pur- 
porting to  follow  it,  have  been  in  terms  overruled — Cases  deal- 
ing with  the  statutory  remainder  created  by  the  Statute  on 
Entails:  The  Illinois  Statute  on  Entails  provides  that  where 
an  estate  tail  would  have  been  created  at  common  law  (meaning 
under  the  Statute  de  Bonis)  the  tenant  in  tail  shall  take  a  life 
estate  and  the  remainder  in  fee  shall  pass  "to  the  person  or  per- 
sons whom  the  estate  tail  would,  on  the  death  of  the  first  grantee, 
devisee,  donee  in  tail,  first  pass,  according  to  the  course  of  the 
common  law,  by  virtue  of  such  devise,  gift,  grant  or  convey- 
ance." The  remainder  created  by  the  statute  would  be  a  con- 
tingent remainder  if  it  were  regarded  as  equivalent  to  a  re- 
mainder to  the  "heirs  of  the  body"  of  the  tenant  in  tail,  who 
was  made  a  life  tenant  by  the  statute.  Furthermore,  the  re- 
mainder under  the  statute  would  be  to  the  eldest  son  of  the 
tenant  in  tail  if  there  were  one,  for  that  would  be  "the  course 
of  the  common  law. ' '  The  cases  in  other  states  having  precisely 
the  same  Statute  on  Entails,  have  reached  these  results.^  In 
Butler  V.  Huestis,^  and  Lehndorf  v.  Cope,^  the  Supreme  Court 

98  Ante,  §  27.  life  estate  in  the  tenant  in  tail  and 

99  Aetna  Life  Ins.  Co.  v.  Hoppin,  according  to  the  settled  construction 
249  III.  406;  214  Fed.  928.  See  also  of  the  Statute  on  Entails,  limited  a 
McCampbell  v.  Mason,  151  111.  500;  remainder  to  the  children  of  the 
Bond  V.  Moore,  236  111.   576;    ante,  tenant  in  tail.     See  post,  §406. 

§  309.  1  Horseley    v.    Hilburn,    44    Ark. 

In  Moore  v.  Reddel,  259  111.  36,  458,   476;    In  re   Estate    Kelso,   69 

the    court    assumed,    in    accordance  Vt.   272;    In  re   Wells'  Estate,   69 

with  the  express  admission  of  coun-  Vt.  388;   Frame  v.  Humphreys,  164 

sel,  that  the  Eule  in  Shelley's  Case  Mo.    336;    Burris   v.   Page,    12    Mo. 

did  apply,  so  that  an  estate  tail  was  358.     Post,  §  405. 
created.       It     necessarily     followed  -  68  111.  594,  598. 

that  the  Statute  on  Entails  applied  ^122  111,  317,  331. 

and    turned    the    estate    tail    into    a 

392 


Ch.  XV]  REVERSIONS    AND   REMAINDERS  [§360 

issued  dicta  that  the  statutory  remainder  was  vested  in  any  child 
as  soon  as  born,  but  subject  to  be  divested  if  the  child  died 
before  the  death  of  the  life  tenant.  The  fact  that  the  remainder 
was  subject  to  be  divested  shows  that  the  court  still  regarded  the 
remainder  as  limited  to  the  "heirs  of  the  body"  in  the  sense  that 
only  those  took  who  answered  that  description  at  the  life  tenant's 
death.  Hence  the  declaration  that  the  remainder  was  vested 
when  any  child  was  born  could  only  go  upon  the  New  York 
statutory  definition  of  a  vested  remainder.  But  the  force  of 
these  dicta  the  court  itself  destroyed  by  subsequently  holding 
that  the  statutory  remainder  was  not  only  vested  in  the  children 
of  the  statutory  life  tenant  as  soon  as  born,  but  it  was  not  subject 
to  be  divested  by  their  death  before  the  life  tenant.^  This  re- 
sult can  rest  only  on  the  ground  that  the  statute  in  terms  pro- 
vided that  the  remainder  in  fee  was  to  go  to  the  "children"  of 
the  statutory  life  tenant  and  not  to  the  "heirs  of  the  body"  of 
the  life  tenant.  Moore  v.  Reddel  ^  frankly  goes  upon  this  read- 
ing of  the  statute.  Whether  the  court  was  right  or  wrong  in  so 
dealing  with  the  Statute  on  Entails,  there  can  be  no  doubt  that 
the  position  actually  taken  eliminates  any  application  of  the  New 
York  statutory  definition  of  a  vested  remainder  which  might  have 
occurred  if  the  dicta  of  Butler  v.  Huestis  and  Lehndorf  v.  Cope 
had  been  consistently  applied. 

§360.  Voris  v.  Sloan:"  Here  the  limitations  were  to  trus- 
tees in  trust  for  "C.  M.  and  the  heirs  of  her  body  forever." 
Upon  the  decease  of  the  trustees  the  legal  title  to  the  property 
was  to  go  to  "C.  M.  during  her  natural  life,  with  the  remainder 
to  the  heirs  of  her  body ;  and  in  case  she  should  die  without  issue, 
then,  in  that  case,  the  legal  title  to  revert  to  the  said  party  of 
the  first  part  or  his  heirs."  It  was  held  that  C.  M.  took  a  life 
estate  in  the  proceeds  of  the  sale  of  property  and  her  children 
the  interest  after  her  death.  Two  children  having  already  died, 
their  interest  passed  by  descent  from  them  to  the  mother.  This 
could  only  be  correct  if  the  children  took  absolute  and  inde- 
feasible interests  when  born.  No  discussion  of  this  point  oc- 
curred in  the  opinion  of  the  court.  The  clearest  ground  for  its 
support  is  that  the  gift  over  "in  case  the  life  tenant  should  die 

<Welliver  v.   Jones,    166   111.    80;  ■•209  111.  36. 

Kyner  v.  Boll,   182  111.  171;   Moore  «  68   111.   588. 

V.  Reddel,  259  111.  36;  post,  §406. 

393 


§361]  FUTURE   INTERESTS  [Ch.  XV 

without  issue,''  by  reference  caused  "heirs  of  the  body"  to  mean 
' '  issue. " '  The  result  of  this  would  be  that  each  issue  on  birth 
took  a  vested  indefeasible  interest,  subject  only  to  open  and  let 
in  other  members  of  the  class.  The  result  of  Voris  v.  Sloan 
might  also  be  supported  if  an  estate  tail  were  regarded  as  cre- 
ated by  the  limitations  to  "C.  M.  and  the  heirs  of  her  body  for- 
ever," under  the  rule  laid  down  in  Welliver  v.  Jones,  Kyner  v. 
Boll  and  Moore  v.  Rcddel?  Under  these  last  mentioned  cases  the 
statutory  remainder  is  regarded  as  limited  to  the  "children." 
This  would  be  a  vested  remainder  under  the  common  law  dis- 
tinction.^ 

§  361.  Smith  v.  West:  '•  Here  the  limitations  are  not  clearly 
set  out.  As  recited  by  the  court  they  were  in  a  deed  from  Allen 
to  2Irs.  West  conveying  a  life  estate  to  the  latter  ' '  and  a  remain- 
der to  the  children  of  her  body,  or  such  as  might  he  living  at  her 
death,  or  the  descendants  of  any  one  that  might  he  then  de- 
ceased." The  holding  was  that  the  children  had  a  vested  re- 
mainder on  birth  and  -that  the  grantor,  Allen,  had  parted  with 
all  of  his  title  and  had  no  reversion  in  fee  and  therefore  was 
not  incompetent  as  a  witness  because  interested.  This  is  clearly 
in  accordance  with  the  proper  application  of  the  common  law 
distinction,  for  the  remainder  to  the  children  of  the  life  tenant 
is  not  subject  to  any  condition  precedent  whatever,  either  in  form 
or  in  substance.  The  children  when  born  obviously  during  the 
continuance  of  their  remainder  stood  ready  to  take  in  possession 
whenever  and  however  the  particular  estate  determined.  The 
phrase  ' '  or  such  as  might  be  living  at  her  death ' '  in  reality  pro- 
vides for  a  gift  over  if  any  shall  die  before  the  life  tenant's 
death,  to  the  surviving  children,  and  this,  read  with  the  preced- 
ing direct  gift  to  the  children,  is  a  condition  subsequent  which 
leaves  the  direct  gift  to  the  children  still  vested.  In  the  same 
way  the  final  gift  in  the  words  "or  descendants  of  any  one  that 
might  be  then  deceased"  is  another  gift  over  in  case  any  child 

7  Supra,  note  5.  vested   in  a  child  as   soon  as  born, 

8  It  is  doubtful,  however,  if  the  was  subject  to  be  divested.  It  is 
court  regarded  an  estate  tail  as  hav-  hardly  possible  that  our  Supreme 
ing  been  created  in  Voris  v.  Sloan,  Court  would  have  issued  such  a  die- 
68  111.  588,  for  the  next  case  in  the  twn  at  the  moment  it  was  holding 
reports  is  Butler  v.  Huestis,  68  III.  the  statutory  remainder  vested  inde- 
.594,  598,  which  stated  emphatically  feasibly. 

that  the  statutory  remainder  though  »  103   111.  332, 

394 


Ch.  XV]  REVERSIONS   AND    REMAINDERS  [§362 

dies  before  the  life  tenant's  death,  leaving  children.  The  eourt 
was  clearly  correct,  therefore,  in  holding  that  the  children  had  a 
vested  remainder  upon  birth  and  that  the  grantor  parted  with  all 
interest.  It  is  noticeable  that  the  eourt  purports  to  apply  the 
common  law  distinction  as  laid  down  by  Fearne  and  Kent.  The 
court,  however,  (pioted  from  Moore  v.  Liitel,^'^  the  leading  case 
decided  in  New  York  under  the  New  York  statutory  distinction. 
The  quotation  from  that  case,  apparently  adopted  in  the  opinion 
of  the  Illinois  Supreme  Court,  is  as  follows:  ''Decisions  and 
text-writers  agree,  that  by  the  common  law  a  remainder  is  vested 
where  there  is  a  person  in  being  who  has  a  present  capacity  to 
take  in  remainder,  if  the  partieular  estate  be  then  presontl}^ 
determined.  *  *  *  The  person  must  be  one  to  whose  compe- 
tency to  take  no  further  or  other  condition  attaches,  etc.,  i.  e., 
in  respect  to  whom  it  is  not  necessary  that  anj-  event  shall  occur, 
or  condition  be  satisfied,  save  only  that  the  precedent  estate 
shall  determine."  This  passage  is  probably  driving  at  the 
proper  and  recognized  common  law  distinction.  A  careful  pe- 
rusal of  it  shows  an  effort  on  the  part  of  the  court  to  express 
what  has  been  so  well  expressed  by  Gray  and  Williams  when 
they  say  in  substance  that  the  remainder  is  vested  when  it  stands 
ready  at  all  times  throughout  its  continuance  to  take  effect  in 
possession  whenever  and  however  the  preceding  estate  deter- 
mines. There  is,  therefore,  absolutely  nothing  in  Smith  v.  West, 
either  in  the  result  or  in  the  language  of  the  court,  to  indicate 
any  tendency  to  adopt  the. New  York  statutory  distinction  be- 
tween vested  and  contingent  remainders.  In  fact,  it  is  notice- 
able that  in  quoting  from  Moore  v.  Littel  the  Illinois  eourt  quotes 
the  New  York  court's  statements  of  the  common  law  distinction 
which  was  the  one  the  New  York  court  in  the  case  quoted  from 
did  not  follow. 

§362.  Siddons  v.  Cockrell:  '^  Here  the  context  containing 
the  limitations  was  very  peculiar.  Our  Supreme  Court  was 
obliged  to  straighten  out  the  extremely  bungling  language  of 
the  will  before  it  could  make  any  determination  of  the  character 
of  the  remainder.  As  the  court  finally  viewed  the  language  the 
limitations  were  as  follows:  "after  tlie  devise  to  the  widow:  I 
devise  all  my  remaining  real  and  personal  estate  to  my  children, 
and  if  any  children  be  dead  leaving  children  surviving  them, 

1041   N.   Y.  66,   72.  11  i:n   111.   653. 

395 


§  363]  FUTURE   INTERESTS  [Ch.  XV 

then  to  them  also, — the  children  of  a  deceased  child  taking  the 
part  of  their  parent;  but  if  all  my  children  shall  die  without 
issue  before  my  wife  shall  die,  I  devise  the  same  to  her. ' '  Clearly 
upon  such  limitations  the  remainder  to  the  children  is  vested 
under  the  common  law  distinction,  exactly  as  in  Smith  v.  West. 
There  is  nothing  to  indicate  that  the  Court  was  not  following 
the  common  law  distinction  or  that  it  had  in  the  slightest  degree 
elected  to  adopt  the  New  York  statutory  distinction. 

§363.  Kellett  v.  Shepard:  12  Here  the  devise  was  to  the 
testator's  daughter  for  life  with  remainder  to  her  child  or  chil- 
dren should  she  have  any,  ' '  but  in  case  she  died  having  no  issue, 
in  such  case  to  go  to  and  descend  in  reversion  to  my  heirs-at- 
law. ' '  It  was  held  that  * '  heirs-at-law ' '  meant  such  as  were  heirs 
at  law  of  the  testator  at  the  time  of  his  death.  There  is  much 
language  of  the  court  to  the  effect  that  the  interest  of  the  heirs 
at  law  under  the  will  was  vested.  It  was  entirely  unnecessary, 
however,  to  determine  whether  the  remainder  was  vested  or  con- 
tingent, since  the  daughter  had  died  having  no  issue,  and  the 
only  question  was,  who  were  to  take  as  heirs  at  law.  If  the 
daughter  as  one  of  the  heirs  at  law  had  taken  a  contingent  re- 
mainder, it  would  nevertheless  have  passed  by  descent,  so  that 
upon  her  death,  having  no  issue,  the  remainder  to  her  as  one 
of  the  heirs  at  law  of  the  testator  would  have  vested  in  her  heirs. 
The  observations  that  the  remainder  to  the  heirs  at  law  of  the 
testator  was  vested  probably  meant  no  more  than  that  there  was 
no  contingency  that  the  heirs  at  law  should  survive  the  life  ten- 
ant, or  that  heirs  at  law  did  not  mean  those  who  would  have  been 
the  heirs  at  law  of  the  testator  had  he  died  at  the  time  of  the 
death  of  the  life  tenant.  Clearly  under  the  common  law  distinc- 
tion the  remainder  to  heirs  at  law  of  the  testator,  meaning  those 
who  are  his  heirs  at  the  time  of  his  death,  is  vested.  But  if 
there  be  added  the  contingency  that  the  heirs  at  law  of  the 
testator  at  the  time  of  his  death  are  not  to  take  unless  the  life 
tenant  dies,  leaving  no  children,  a  collateral  contingency  is  added 
which  will  make  the  remainder  contingent,  precisely  as  in  Golla- 
day  V.  Knock  ^^  and  Bond  v.  Moore.^*  The  result  in  Kellett  v. 
Shepard  is  clearly  correct  and  the  references  of  the  court  to  the 
remainder  being  vested  are  to  be  put  down  as  a  misapplication 

12  139  111.  433.  14  236  111.   576. 

13  235  111.  412. 

396 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  |  §  364 

of  the  correct  and  technical  meaning  of  vested.  There  is  no 
evidence  whatever  that  the  court  regarded  itself  as  departing 
from  the  common  law  distinction  between  vested  and  contingent 
remainders  and  the  common  law  consequences  thereof. 

§364.     Burton  v.  Gagnon:  ^^     Here  we  have  an  opinion  of 
the  court  which  was  agreed  to  by  three  only  out  of  seven  mem- 
bers,    it  is  in  fact  a  minority  opinion.     Three  judges  dissented 
wholly  and  one  judge  dissented  from  the  reasoning  and  particu- 
larly the  construction  placed  upon  the  will  in  question.     In  no 
event,  therefore,  can  the  opinion  in  this  case  be  given  much 
weight.     The  will  involved  in  that  case  after  making  a  gift  to 
children,  which  the  court  recognized  as  an  absolute  one,  pro- 
vided for  a  gift  over  to  "heirs  at  law  of  my  deceased  father,"  in 
case  "all  of  my  children  die  intestate  and  without  lawful  chil- 
dren and  not  survive  my  wife."     A  decree  for  the  complain- 
ants that  tlie  gift  over  was  ineffective  as  against  the  first  taker 
was  affirmed.     One  ground  was  that  of  repugnancy.    The  other 
ground  was  that  the  executory  devisees  were  precluded  by  a 
former  decree  in  partition  to  which  they  were  parties.    To  this 
latter  point  the  executory  devisees  answered  that  their  interest 
was  contingent,  so  it  could  not  have  been  the  subject  of  adjudi- 
cation in  the  partition  suit.    The  court  replied  that  the  interest 
of  the  executory  devisees  was  vested.    This  apparently  proceeded 
upon  the  ground  that  heirs  at  law  of  the  deceased  person  were 
ascertained,  and  since  those  to  take  the  ultimate  gift  over  were 
ascertained,  they  must  take  a  vested  interest,  although  subject 
to  three  collateral  contingencies:    (a)  the  death  of  the  children 
intestate ;  (b)  the  death  of  the  children  without  lawful  issue  :  and 
(c)  failure  of  the  children  to  survive  the  wife;  and  although  the 
future  interest  was  not  a  remainder  at  all,  but  an  executory  de- 
vise.    Nothing  could  be  more  extraordinary  than  the  calling  of 
such  an  interest  vested.    Executory  interests  can  never  properly 
be  called  vested.     The  cases  relating  to  the  Rule  against  Per- 
petuities make  that  clear,  for  in  the  application  of  the  rule  no 
executory  devise  is  ever  vested  until  it  takes  effect  in  possession. 
Golladay  v.  Knock  ^^  has  made  it  clear  that  a  remainder  to  an 
ascertained  person,  which  is,  however,  subject  to  only  one  col- 
lateral contingency,  such  as  the  life  tenant  dying  without  chil- 

iMSn   Til.   .'^4.').  i«235  111.  412. 

397 


Jj-JGo]  FUTURE    INTERESTS  [Ch.  XV 

dreii,  still  belongs  to  the  class  of  contingent  remainders.  It  is 
not  possible  to  make  any  deductions  whatever  from  this  minority 
opinion  in  Burton  v.  Gagnon  as  to  the  views  of  the  Court  regard- 
ing the  proper  line  of  distinction  between  vested  and  contingent 
remainders  obtaining  in  Illinois. 

§  365.  Boatman  v.  Boatman:  ^"  In  this  case  the  limitations 
were  by  will,  as  follows :  To  E  for  life ;  ''at  his  death,  if  he  leaves 
a  child  or  children  surviving  him,  then  said  land  is  to  go  to 
said  child  or  children,  but  if  he  dies  leaving  no  child  or  children 
surviving  him,  then  said  lands  to  go  to  his  brothers  and  sisters." 
After  the  death  of  the  testator,  E  died,  leaving  no  child  or  chil- 
dren. Clara,  E  "s  sister,  conveyed  prior  to  E  's  death  and  while 
E  was  without  children,  by  quit  claim  deed  all  her  interest  in 
the  lands  devised.  E  's  brother,  Clarence,  died  prior  to  E  's  death. 
It  was  held  that  Clarence 's  future  interest  descended  to  his  heirs 
at  law  and  that  Clara's  future  interest  was  transferred  by  her 
quit  claim  deed.  This  was  affirmed.  Clearly  the  case  is  cor- 
rect so  far  as  the  passing  of  Clarence's  remainder  to  his  heirs 
at  law  is  concerned,  for  a  contingent  remainder  was  descendible 
at  common  law  and,  if  it  were  limited  upon  a  collateral  con- 
tingency, such  as  the  death  of  the  life  tenant  without  children, 
as  in  the  Boatman  case,  which  left  a  chance  that  it  might  vest 
after  the  death  of  the  remainderman,  it  regularly  descended  to 
his  heirs  at  law.  So  much  in  the  Boatman  case  is  clear,  whether 
the  remainder  to  Clarence  was  vested  or  contingent.  The  hold- 
ing, however,  that  Clara's  remainder  was  transferable  by  quit 
claim  deed  before  E  's  death  is  a  definite  repudiation  of  the  com- 
mon law  consequence  of  the  inalienability  of  a  contingent  re- 
mainder. By  the  common  law  distinction  Clara's  remainder  was 
contingent  because  the  event  of  E's  dying  without  children  was 
one  which  might  not  happen  until  after  the  termination  of  E's 
life  estate  by  merger.  It  was  also  a  condition  precedent  in  fact 
and  in  form  to  Clara's  taking.  On  the  other  hand,  by  the  New 
York  statutoi-y  distinction,  C  had  a  vested  remainder.  Since 
E  had  no  children  at  the  time  of  the  conveyance,  Clara  was 
ready  to  take  at  once  if  E  had  died  then.  In  short,  E  had  at 
that  time  a  present  capacity  of  taking  in  possession  if  E's  life 
estate  had  then  detei-mined,  although   it  could  not  be  said  of 

IT  198  111.  414. 

398 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  |  §  366 

Clara  that  she  wa.s  throu(jhoui  the  coniinnuiice  of  her  remainder 
at  all  times  readt^to  take  whenever  and  however  E's  life  estate 
determined,  which  was  the  re(iiureinent  of  tlie  common  law  for 
a  vested  remainder.  It  is  clear,  therefore,  that  Boatman  v. 
Boatman  is  a  decision,  adopting  the  New  York  statutory  dis- 
tinction so  far  as  the  conseciuence  of  alienability  of  remainders 
is  concerned.  Curiously  enough,  however,  the  opinion  of  the 
court  does  not  disclose  any  tendency  to  take  up  the  New  York 
statutory  distinction  or  to  depart  from  the  common  law  distinc- 
tion. The  case  is  one  where  the  court  while  purporting  to  go 
upon  the  common  law  distinction  was  not  clear  as  to  what  that 
distinction  was  and  thus  fell  into  a  palpable  error.  The  subse- 
quent case  of  Golladaij  v.  Knock  ^^  has  in  terms  overruled  the 
result  reached  in  the  Boatman  ease. 

§  366.  Chapin  v.  Nott:  '■'  In  this  case  the  limitations  w^ere 
by  deed  after  a  life  estate  "to  Maud  Chapin  and  the  heirs  of 
her  body,  if  she  has  issue ;  in  the  event  that  the  said  Maud  Chapin 
dies  without  issue,  then  the  lands  therein  described  are  to  re- 
vert to"  J.  B.,  S.  M.  and  E.  V.  N.  E.  V.  N.  died  before  Maud, 
and  then  Maud  died  without  ever  having  had  issue.  The  heirs 
of  E.  V.  N.  claimed.  Clearly,  they  were  entitled,  even  though 
her  interest  was  a  contingent  remainder,  because  contingent  re- 
mainders were  descendible  and  if,  as  here,  they  were  subject  only 
to  a  collateral  contingency,  such  as  the  death  of  the  life  tenant 
without  issue,  which  might  happen  after  the  death  of  the  re- 
mainderman, the  chance  of  obtaining  the  vested  interest  regu- 
larly descended  to  the  contingent  remainderman's  heirs.  The 
holding  that  the  heirs  of  E.  V.  N.  were  entitled  to  her  share  is, 
therefore,  entirely  consistent  with  the  common  law  distinction. 
The  court  placed  its  result  ui)on  the  ground  that  the  remainder 
was  vested,  following  the  result  of  the  Boatman  case.  Again, 
however,  the  court  does  not  ap])ear  consciously  to  be  departing 
from  the  common  law  distinction,  oi-  to  be  adojiting  the  New 
York  statutory  distinction.  Again,  it  is  a  case  of  the  court  mis- 
conceiving the  proper  formula  for  the  common  law  distinction, 
and  while  laboring  under  this  misconception  obtaining  a  cor- 
rect  result   on  wrong  reasoning.     Again   Oulladai/    r.   Knock  -•' 

18  235  111.  4V2.  2"  2.35   111.   412. 

19  20;;  111.  ;^4l. 

399 


§  367]  FUTURE   INTERESTS  [Ch.  XV 

has   straightened   the   situatiou   out   by   repudiating   the  basis 
whicli  the  court  selected  for  its  holding  in  Chapin  v.  Nott. 

s$  367.  Ruddell  v.  Wren:  -^  The  result  in  this  case  is  cor- 
rect, but  tlie  reasoning  is  subject  to  tlie  same  objection  as  that 
upon  which  the  Boatman  case  was  founded.  The  limitations 
after  the  life  estate  to  the  daughter  were  to  her  surviving  chil- 
dren with  a  gift  over  "in  case  my  said  daughter  shall  die  with- 
out leaving  anj-  child  or  children,"  to  my  brothers  and  sisters, 
' '  and  in  case  any  one  or  more  or  all  of  them  shall  be  dead  at  the 
time  of  the  death  of  my  said  daughter,  then  the  share  of  such 
deceased  brother  or  sister  shall  go  to  and  be  equally  divided 
among  his  or  her  children,  share  and  share  alike."  The  court 
held  that  the  brothers  and  sisters  had  a  contingent  remainder 
and  therefore  no  partition  could  be  had  before  the  remainder 
vested.  If  this  meant  merely  that  remainders  which  were 
not  vested  indefeasibly  were  not  subject  to  partition,  then  no 
iiuestion  of  the  common  law  distinction  between  vested  and  con- 
tingent remainders  was  here  involved,  but  only  the  rule  as  to 
what  future  interests  are  subject  to  partition.  The  court,  how- 
ever, discusses  the  character  of  the  remainder  to  the  brothers 
and  sisters  in  terms  of  contingent  and  vested  remainders. 
Clearly  the  remainder  was  contingent  on  the  common  law  distinc- 
tion since  it  was  subject  to  the  collateral  contingency  of  the  life 
tenant  dying  without  children  surviving.  This  view  is  consistent 
W'ith  Golladay  v.  Knock  22  and  contrary  to  Boatman  v.  Boat- 
man,-^ and  the  reasoning  of  Chapin  v.  Nott.-'^  The  reasoning 
of  the  Illinois  Supreme  Court,  however,  in  Ruddell  v.  Wren 
attempts  to  reconcile  its  result  with  the  views  of  the  Boatman 
case  and  Chapin  v.  Nott  by  insisting  that,  without  the  gift  over 
in  case  the  brothers  and  sisters  died  before  the  daughter  to  their 
children,  the  remainder  would  have  been  exactly  like  the  remain- 
der in  the  Boatman  case  and  Chapin  v.  Nott,  and  would  have 
been  vested.  Then  the  court  goes  on  to  declare  that  the  pres- 
ence of  the  gift  over  if  the  brothers  and  sisters  died  before  the 
daughter, — a  gift  over  which  is  obviously  by  way  of  condition 
subsequent  and  expressed  a.*^  a  condition  subsequent  in  form — 
made  the  remainder  contingent.  If  the  court  had  said  it  made 
the  remainder  vested  but  not  indefeasibly  vested,  and,  there- 

21  208   111.   .508.  23  198   111.  414. 

22  2,35   111.   412.  24  203   111.   .341. 

400 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  I  §  368 

fore,  not  subject  to  partition,  it  might  have  expressed  its  actual 
holding  with  precision.  But  it  insisted  upon  calling  the  re- 
mainder a  contingent  remainder  because  of  this  gift  over  and 
repudiated  the  idea  that  it  was  a  condition  precedent  which  in- 
troduced it.  Such  reasoning,  however  well  intended,  is  impos- 
sible from  every  point  of  view.  If  the  remainder  in  the  brothers 
and  sisters  was  vested  except  for  the  gift  over  if  they  died  before 
the  life  tenant,  then  the  existence  of  the  gift  over  expressed  as 
a  condition  subsequent  could  not  make  the  remainder  a  con- 
tingent remainder  in  the  technical  common  law  sense  under  any 
known  view.  It  coidd  not  do  it  under  the  common  law  distinc- 
tion because  the  gift  over  would  simply  operate  as  a  condition 
subsequent.  It  could  not  do  it  under  the  New  York  statutory 
distinction  in  any  event.  Ruddell  v.  Wren,  therefore,  is  either 
a  practical  repudiation  of  the  Boatman  case  and  the  reasoning 
of  Chapin  v.  Nott,  or  it  means  merely  that  a  remainder,  whether 
vested  or  contingent  in  the  common  law  sense,  while  it  is  a  fu- 
ture interest  and  not  certain  ever  to  vest  indefeasibly  because 
subject  either  to  a  condition  precedent  to  its  taking  effect  or  a 
condition  subsequent  which  might  divest  it  after  it  has  taken 
effect,  is  not  subject  to  partition.  In  either  view  the  case  has  no 
effect  to  establish  any  departure  from  the  application  of  the  com- 
mon law  distinction  between  vested  and  contingent  remainders. 

§  368.  Orr  v.  Yates :  -■'  Here  a  remainder  after  a  life  estate 
Avas  devised  to  the  testator's  daughter  "in  fee  simple  *  *  * 
that  is  to  say,  that  if"  at  the  death  of  the  testator's  wife  the 
daughter  "shall  then  be  living,  the  fee  to  said  real  estate  shall 
vest  in  her,"  but  if  the  daughter  is  not  living,  the  fee  shall  vest 
in  her  children,  or  if  she  leaves  no  children,  "then,  in  such  case, 
said  fee,  if  not  disposed  of"  by  the  daughter,  shall  vest  in  the 
testator's  brothers  and  sisters.  The  bill  was  filed  for  the  con- 
struction of  the  trusts  and  to  determine  whether  the  gift  over  to 
brothers  and  sisters  was  void  for  repugnancy  and  whether  the 
daughter  took  a  remainder  in  fee.  The  court  held  the  gift  over 
void  and  that  the  daughter  took  only  for  life.  The  decree  was 
reversed  on  these  points.  Whether  the  remainder  in  fee  in  the 
daughter  was  to  be  called  vested  or  contingent  in  the  common 
law  sense  of  these  terms  was  not  in  the  least  involved.  The  court 
in  the  fewest  possible  words  and  merely  by  the  way,  assumed, 

25  209   111.   222. 

Kales  Fut.  Int.— 2G  401 


§369]  FUTURE   INTERESTS  [Ch.  XV 

that  "the  remainder  in  fee  would  seem  upon  all  the  authorities 
to  be  a  vested  remainder  and  not  merely  contingent,"  citing 
Chapin  V.  Nott.  This  merely  passing  assumption  has  no  weight 
whatever.  It  falls  along  with  the  repudiation  by  the  court  in 
Golladay  v.  Knock  -^  of  the  reasoning  in  Chapin  v.  Nott. 

i 

TITLE  VIII. 

JUEISDICTION   OF    EQUITY    TO    SET    ASIDE    AND   ENFOECE 
TRANSFERS   OF   REVERSIONS   AND   REMAINDERS. 

§  369.  Introductory :  Equity  was  not  satisfied  with  the 
feudal  distinction  between  reversions  and  vested  remainders  on 
the  one  liand  and  contingent  remainders  on  the  other  as  a  test 
of  alienability  or  inalienability.  It  was  unwilling  that  all  trans- 
fers of  reversions  and  vested  remainders  should  be  given  effect. 
It  was  equally  unwilling  that  all  transfers  of  contingent  re- 
mainders should  fail.  Accordingly  it  developed  its  own  rules 
for  setting  aside  transfers  of  reversions  and  vested  remainders 
and  for  giving  effect  to  transfers  of  contingent  remainders. 

§  370.  Setting  a,side  transfers  of  reversions  and  vested  re- 
mainders which  were  indefeasible:  The  English  court  of  chan- 
cery over  two  hundred  years  ago  commenced  to  exercise  a  juris- 
diction to  set  aside  transfers  of  reversions  and  vested  remaind- 
ers in  land,  although  such  reversions  or  vested  remainders  were 
indefeasible.  No  fraud  was  required  to  be  proved.  It  was 
enough  that  the  price  paid  was  inadequate.-^     The  rule  was 

26  235  111.  412.  Bowes  v.   Heaps,   3   Ves.   &  B.   117 

27  Berny  v.  Pitt,  2  Vern.  14  (1814),  (remainders  subject  to  life 
(1686),  (remainder  in  tail  after  estate  and  remainders  in  tail); 
life  estate)  ;  Nott  v.  Johnson,  2  Hinksman  v.  Smith,  3  Russ.  434 
Vern.  27  (1687),  (remainder  in  tail  (1827),  (fee  subject  to  life  estate)  ; 
after  life  estate)  ;  Twisleton  v.  King  v.  Hamlet,  2  Myl.  &  K.  456 
GriflBth,  1  P.  Wms.  316  (1716),  (re-  (1834);  Bawtree  v.  Watson,  3  Myl. 
mainder  in  tail  after  life  estate)  ;  &  K.  339  (1834)  ;  Aldborough  v. 
Barnardiston  v.  Lingood,  2  Atk.  133  Trye,  7  CI.  &  Fin.  436  (H.  of  L.) 
(1740),  (remainder  in  tail  after  life  (1840),  (remainder  in  tail  after 
estate) ;  Gwynne  v.  Heaton,  1  Bro.  life  estate) ;  Edwards  v.  Burt,  2 
Ch.  1  (1778),  (rent  charged  by  DeG.  M.  &  G.  i55  (1852),  (remain- 
remainderman  in  tail  after  life  der  for  life  subject  to  life  estate)  ; 
estate);  Gowland  v.  DcFaiia,  17  Salter  v.  Bradshaw,  26  Beav.  161 
Ves.  Jr.  20  (1810),  (reversion  (1858),  (fee  or  fee  tail  subject  to 
in     fee     subject     to     life     estate)  ;  life  estates) ;  St.  Albyn  v.  Harding, 

402 


Cn.XV 


i{p:versions  and  remainders 


§  370 


carrii'd  so  I'ar  that  the  tuiidi'ii  was  pul  upon  the  purcliaser  to 
sliow  that  a  proper  priee  had  l>een  paid.^**  There  were  two 
views  as  to  what  pi-ice  was  proper.  One  re(|uired  to  be  paid 
the  pn'seiit  value  as  eah-uhited  l)y  an  actuary — tliat  is  an  exact 
quid  pro  (^uo.  This  was  caUed  tlie  arithmetical  value-^'-*  To 
adhere  to  it  was  practically  to  render  the  remainder  or  rever- 
sion inalienable.  The  other  view  was  that  only  the  fair  market 
value  need  be  paid.'"'  This  gave  some  opportunity  for  transfer. 
These  extreme  views  were  modified  by  an  act  of  Parliament  in 
1867  •"  which  provided  that  "no  purchase  made  bona  fide  and 
without  fraud  or  unfair  dealing  of  any  reversionary  interest 
in  real  or  personal  estate  shall  hereafter  be  opened  or  set  aside 
merely  on  the  ground  of  undervalue."  This,  however,  left 
courts  of  equity  free  to  set  aside  such  sales  where  there  was 
unfair  dealing  and  this  might  appear  from  gross  inadeciuacy 
in  the  price  paid.-'-  It  may  be  doubted  whether  courts  of  chan- 
cery in  this  country  would  exercise,  in  any  such  extreme  man- 
ner as  the  English   chancery  courts  did,  a  jurisdiction  to  set 


27  Beav.  11  (1859),  (remainder  in 
tail  after  life  estate)  ;  Jones  v. 
Ricketts,  .31  Beav.  1.30  (1862),  (re- 
version in  fee  subject  to  life  estate). 

The  same  rule  applies  to  future 
interests  in  personal  property : 
Potts  V.  Curtis,  1  Younge,  543 
(18.32);  Foster  v.  Roberts,  29  Beav. 
467  (1861);  Nesbitt  v.  Berridge,  32 
Beav.  282  (1863). 

A  fortiori,  the  rule  applies  where 
the  reversion  and  vested  remainder 
is  defeasible.  Where  the  interest 
is  subject  to  a  condition  precedent : 
Boothl)y  r.  Boothby,  15  Beav.  2]  2 
(1852). 

See,  however,  Nichols  r.  Gould,  2 
Ves.  Sr.  422  (1751),  (reversion  in 
fee  subject  to  a  life  estate). 

A  sale  at  public  auction  was  sus- 
tained in  Shelly  v.  Nash,  3  Madd. 
232  (1-818). 

28  Gowland  v.  DeFaria,  17  Ves. 
20,  24,  and  other  cases  cited,  supra, 
note  27. 


-9  Gowland  v.  DeFaria,  17  Ves. 
20  (1810);  Hinksman  v.  Smith,  3 
Russ.  433  (1827);  Bawtree  v.  Wat- 
son, 3  Myl.  &  K.  339  (18.34)  ;  Booth- 
by V.  Boothby,  15  Beav.  212  (1852)  ; 
Salter  v.  Bradshaw,  26  Beav.  161 
(1858) ;  Foster  v.  Roberts,  29  Beav. 
467  (1860);  Jones  v.  Ricketts,  31 
Beav.  130  (1862);  Nesbitt  v.  Ber- 
ridge, 32  Beav.  282  (1863). 

soHeaden  v.  Rosher,  1  M'Clel.  & 
Y.  89  (1825);  Potts  v.  Curtis,  1 
Younge  543  (1832);  Wardle  v.  Car- 
ter, 7  Sim.  490  (1835);  Aldborough 
V.  Trye,  7  CI.  &  Fin.  436  (1840); 
Edwards  v.  Burt,  2  De  O.  M.  &  G. 
55  (1852);  Tynte  v.  Hodge,  13 
Wkly.  Rep.  172  (1864);  Willough- 
by  V.  Brideoke,  13  Wkly.  Rej).  515 
(1865). 

31  31  Vict.  Ch.  4. 

52  Tyler  v.  Yates,  6  Ch.  App.  665 
(1871);  Aylesford  r.  Morris,  8  Ch. 
App.  484  (1873)  ;  Brenchley  v.  Hig- 
gins,  70  L.  J.   Ch.   788   (1901). 


403 


§  371]  FUTURE   INTERESTS  [Ch.  XV 

aside  transfers  of  reversions  and  vested  remainders.  It  may 
even  be  doubted  whether  they  would  exercise  such  a  jurisdic- 
tion at  all  where  the  reversion  or  vested  remainder  was  inde- 
feasible and  there  was  no  fraud.^^ 

§  371.  Setting-  aside  transfers  of  reversions  and  vested  re- 
mainders which  are  defeasible:  The  English  cases — Avhethei- 
lliey  I>e  followed  in  their  extreme  results  or  not— at  least  estab- 
lish for  the  chancery  courts  of  this  country  some  equitable  juris- 
diction to  set  aside  the  transfer  of  a  future  interest  by  reason 
of  inadequacy  of  price  and  other  unconscionable  circumstances, 
even  though  there  is  no  fraud.  Does  the  transfer  of  a  reversion 
or  a  vested  remainder  which  is  defeasible  present  such  a  case? 
Such  a  reversion  or  remainder  is  alienable  at  law  while  the 
contingent  remainder  is  not.  The  vested  remainder  may,  how- 
ever, be  vested  subject  to  be  divested  if  the  remainderman  does 
not  survive  the  life  tenant.  The  contingent  remainder  may  be 
subject  to  a  condition  precedent  in  form  that  the  remainder- 
man survive  the  life  tenant.  So  far  as  alienability  is  concerned, 
one  is  from  a  modern  rationalistic  point  of  view,  the  same  as 
the  other.  Barring  the  rule  of  destructibility,  one  is  as  uncer- 
tain to  take  effect  as  the  other.  Yet  by  the  feudal  land  law  one 
is  alienable  and  the  other  is  not.  Whatever  policy  there  may 
be  in  favor  of  safeguarding  the  holders  of  contingent  remaind- 
ers by  continuing  the  rule  of  inalienability,  applies  equally  to 
the  defeasible  vested  remainder.  The  same  reasoning  which 
would  cause  a  court  of  equity  to  refuse  specific  performance  of 
a  conveyance  of  a  contingent  remainder  after  the  remainder  had 
vested  if  the  price  were  inadequate  or  the  circumstances  un- 
conscionable (though  not  fraudulent),  are  applicable  to  prevent 
the  carrying  out  of  a  transfer  of  a  vested  though  defeasible  re- 
mainder. In  these  circumstances  it  is  to  be  expected  that  the 
courts  of  chancery  in  this  state  will  use  an  established  juris- 
diction to  set  aside  for  inadequacy  of  price  or  unconscionable 
circumstances  (not,  however  amounting  to  actual  fraud)  trans- 

33  Jenkins  t'.  Pye,  12  Pot.  (U.  S.)  Nimmo    v.    Davis,    7    Tex.    26,    31; 

241,   252,   253;    Whelen   v.   PhUlips,  Boynton   v.   Hubbard,   7   Mass.  112, 

151   Pa.   312;   "Attitude   of   Public  120;     Kenwood     Trust    &     Savings 

Policy  toward  the  Contracts  of  Heirs  Bank  v.  Palmer,  209  111.  App.  370; 

Expectant    and     Eeversioners, "    13  285  111.  552. 
Yale    Law    .Journal,    228.      But    see 

404 


Ch.  XV]  REVERSIONS    AND   REMAINDERS  [§373 

fers  of  reversions  and  vested  remainders  which  are  defeasible. 
They  may  not  go  the  k'ngtli  of  tlie  English  chancery  court. 
They  may  not  re(|uire  the  full  price  to  be  paid.  They  may  not 
put  the  burden  of  proof  on  the  purchaser.  They  are  quite  likely, 
however,  to  set  the  transfer  aside  where  the  transferor  proves 
that  the  price  was  grossly  iimdequate  and  that  the  circumstances 
surrounding  the  transaction  were  unconscionable. 

§  372.  Suppose  the  transfer  of  the  reversion  or  vested  re- 
mainder were  by  a  guardian's  sale:  It  is  assumed  that  if  the 
reversion  or  vested  remainder  were  indefeasible  its  transfer 
would  not  be  disturbed.  It  seems  hardly  possible,  however,  that 
a  court  of  equity  would  disturb  it  where  the  reversion  or  vested 
remainder  were  defeasible  and  the  sale  had  the  approval  of  a 
court  of  competent  jurisdiction.  To  act  otherwise  would  be  to 
permit  a  collateral  attack  on  the  decree  of  a  court  of  competent 
jurisdiction. •'*•* 

§  373.  Suppose  the  transfer  of  the  reversion  or  remainder 
were  by  execution  sale:  If  the  reversion  or  vested  remainder 
sold  is  indefeasil)le  it  is  doubtful  if  equity  would  interfere  to 
set  aside  the  sale  for  inadequacy  of  consideration.  The  case 
is  too  much  like  the  sale  on  execution  of  a  present  interest  in 
possession.  The  actual  value  is  fairly  ascertainable  and  the 
statutory  period  of  redemption  gives  the  debtor  protection 
against  the  sale  for  an  inadequate  price.  If,  however,  the  rever- 
sion or  vested  remainder  is  defeasible,  it  is  the  mere  technical  or 
feudal  dilference  between  such  a  remainder  and  contingent  re- 
mainders that  makes  the  former  alienable  by  execution  sale  and 
the  latter  not.  Both  alike  may  (except  for  the  application  of 
the  rule  of  destructibility)  be  equally  uncertain  ever  to  come 
into  possession  or  vest  indefeasibly.  There  are  strong  reasons 
why  such  interests  (whether  vested  and  defeasible  or  contin- 
gent) should  not  be  subject  to  sale  on  execution.  By  reason 
of  the  uncertainty  that  the  remainder  will  ever  vest  or  come 
into  possession  indefeasibly  the  creditor  has  the  debtor  at  his 
mercy.  He  may  bid  in  the  interest  at  a  very  low  price  and 
then  keep  the  balance  of  his  judgment  alive  indefinitely  and 
l^ossibly  collect  it  out  of  other  property.  The  period  of  re- 
demption does  the  debtor  no  good   because   during  that  time 

^■*  For  this  reason  no  attack  could       riiptcy   sale   involved    in   Wallace   r. 

lie    \uiu\i'    diroitly    upon    the    liank-        Foxwell,  250  111.   616. 

405 


§  374]  FUTURE   INTERESTS  [Ch.  XV 

the  uuLH'rtaiiity  of  the  reinaiiuler  vesting  indefeasibly  is  as  great 
as  ever.  The  existence  of  the  uncertainty  discourages  redemp- 
tion even  where  tlie  purchase  price  is  very  low.  Thus  the  credi- 
tor for  a  small  sum  obtains  tlie  chance  of  a  valuable  estate  and 
has  his  judgment  as  well.  This  is  unconscionable.  It  is  the 
real  basis  for  the  strict  enforcement  of  the  rule  that  there  can 
be  no  execution  sale  of  contingent  remainders.  The  courts  have 
no  doubt  been  bothered  by  observing  that  the  policy  against 
execution  sales  of  reversions  and  vested  remainders  which  were 
defeasible  was  just  the  same  as  the  policy  against  permitting 
execution  sales  of  contingent  remainders.  The  way  out  is  to 
use  the  jurisdiction  of  a  court  of  equity  to  set  aside  execution 
sales  of  reversions  and  vested  remainders  which  are  defeasible 
when  the  price  is  inadequate  and  the  terms  of  the  sale  uncon- 
scionable. 

§  374.  Specific  performance  of  transfers  of  contingent  re- 
mainders as  contracts  to  convey  when  the  remainder  vests: 
The  expectancy  of  one  as  the  heir  of  a  living  person  may  be 
released  to  the  ancestor  and  in  equity  such  a  release  will  be 
enforced  for  the  benefit  of  the  other  heirs.^s  The  expectancy 
of  such  an  heir  is  assignable  in  equity  to  a  stranger  who  may 
upon  the  death  of  the  ancestor  maintain  a  bill  for  specific  per- 
formance to  compel  a  conveyance.'"'  Inadequacy  of  considera- 
tion and  circumstances  of  unfairness  would  be  a  defense  to  such 
a  bill.  The  English  court  of  chancery  refused  specific  perform- 
ance when  the  price  alone  was  such  as  would  warrant  the  set- 
ting aside  of  the  transfer  of  a  reversion  or  vested  remainder.^^ 
It  should  not  be  open  to  doubt  that  in  Illinois  the  attempt  to 
transfer,  upon  a  proper  consideration  and  where  there  were  no 
elements  of  unfairness,  a  contingent  remainder,  would  operate 

sr.  Crum  v.  Sawyer,  132  111.  443,  -^g  Parsons  r.  Ely,  45  111.  232; 
460-461 ;  Longshore  v.  Longshore,  Ridgeway  v.  Underwood,  67  111.  419, 
200  111.  470,  479;  Bishop  v.  Daven-  427  (the  interest  assigned  was  a 
port,  58  111.  105;  Galbraith  v.  Mc-  springing  executory  interest).  See 
Lain,  84  111.  379;  Kershaw  v.  Ker-  post,  §181;  Hudnall  v.  Ham,  183 
shaw,  102  111.  307;  Simpson  v.  Simp-  111.  486,  500,  501;  Donough  v.  Gar- 
son,  114  111.  603;  Donough  i;.  Gar-  land,  269  111.  565. 
land,  269  111.  565 ;  Simmons  t?.  Ross,  ^^  Peacock  v.  Evans,  16  Ves.  Jr. 
270  111.  372;  Mires  v.  Lau])enheini-  511  (1809).  See  cases  cited,  ante, 
er,  271  111.  296.  But  see  Sayer  v.  §  370. 
Humphrey,  216  111.  426. 

406 


Ch.  XVJ  reversions  and  remaindehs  [  §  ;}76 

as  an  assignment  in  equity  and  that  specific  pcrroniiaiift'  would 
be  given  wiien  the  remainder  vested.''*'*  The  conveyance  must, 
however,  on  its  face  sliow  an  intent  to  transfer  the  contingent 
remainder.'"' 

§375.  Specific  performance  of  a  guardian's  attempted 
transfer  of  the  ward's  contingent  remainder:  If  a  guardian 
has  no  statutory  power  to  deal  with  iiis  ward's  contingent  re- 
mainder in  any  way,  his  attempted  transfer  is  not  only  void 
at  law  hut  there  can  he  no  contract  of  which  a  court  of  equity 
could  give  specific  performance.  If,  however,  the  guardian  has 
power  to  deal  with  the  ward's  real  estate  in  any  waj'  that  the 
ward  could  if  he  were  of  age,  then  the  guardian  would  have 
power  to  contract  to  convey  the  ward's  contingent  remainder 
and  equity  could  give  specific  performance  of  the  attempted 
transfer  when  the  remainder  vested.  The  assumption  seems  to 
have  been  that  this  could  not  be  done.^"  If  it  could  be,  the 
question  would  arise  whether  after  an  approval  of  the  guardian's 
contract  by  a  court  of  competent  jurisdiction,  a  court  of  chancery 
would  undertake  to  inf|uire  into  tlie  adequacy  of  the  considera- 
tion or  the  fairness  of  th<'  transaction. 

§  376.  Equitable  execution  upon  contingent  remainders  by 
creditors'  bill:  This  is  flatly  denied  in  a  recent  case.^^  The 
unfairness  of  execution  sales  of  contingent  remainders  as  well 
as  of  reversions  and  vested  remainders  which  are  defeasible  has 
already  been  indicated  ante,  §  373.    These  considerations  justify 

38  3  Pomeroy,  Equity  Jurisp.  Court  to  hold  that  a  quit  claim  deed 
§§  1287,  1271 ;  Fearne,  Cont.  Rem.  in  the  usual  form  does  not  refer 
549-551 ;  Smith  's  notes  to  Fearne,  to  any  interest  other  than  that  which 
C.  R.,  §§749-750;  Watson  c.  Smith,  is,  at  the  time  such  deed  is  exe- 
110  N.  C.  6;  Whelen  v.  Phillips,  151  euted,  transmissible  by  direct  con- 
Pa.  312.  In  GoUaday  v.  Knock,  veyance  inter  vivos.  The  cases 
235  111.  412,  the  warranty  deed  of  looking  toward  this  construction 
the  heir  of  a  contingent  remainder-  have  come  up  in  regard  to  the  as- 
man  was  not  enforced  in  equity  signment  in  equity  of  future  inter- 
against  the  heir  of  the  grantor  who  osts  by  way  of  executory  dense  and 
died  before  the  remainder  vested  in  ara^  considered  fully,  post,  §481. 
him.  No  question,  however,  of  the  »  Hill  v.  Hill,  264  111.  219;  Graff 
enforceability  of  the  attempted  con-  v.  Rankin,  250  Fed.  150. 
veyance  was  considered  by  the  •"  Kenwood  Trust  &  Savings  Bank 
court.  V.    Palmer,   209   111.    App.    ;?70;    2S5 

33  There  seems   to  be  an  inelina-  111.  552. 
tion    on    the   part    of   our    Supreme 

407 


§  377]  FUTURE   INTERESTS  [Ch.  XV 

the  refusal  by  courts  of  equity  to  permit  any  equitable  execution 
against  contingent  remainders  just  as  they  furnish  the  basis  for 
setting  aside  for  want  of  an  adequate  consideration  an  execution 
sale  of  a  reversion  or  vested  remainder  which  is  defeasible, 

§  377.  Suppose  the  interest  attempted  to  be  transferred 
while  in  form  like  a  contingent  remainder,  is  equitable  and  not 
legal:  Such  interests  are  not  subject  to  any  feudal  rule  of 
destructibility.^2  Ti^ey  are  not  subject  to  any  feudal  rule  of 
inalienability.  They  are  recognizable  only  by  courts  of  equity. 
Those  courts  have  their  own  rules  regarding  the  alienability  of 
such  interests.  They  do  not  have  to  resort  to  the  subterfuge  of 
giving  specific  performance  of  a  contract  to  convey.  They  may 
recognize  the  conveyance  as  passing  the  equitable  title  to  the 
contingent  interest.  Still  the  consideration  must  be  adequate 
and  there  must  be  no  unconscionable  circumstances.  In  Spengler 
V.  Kuhn^^  the  equitable  contingent  remainder  (if  it  may  be 
called  so  for  convenience)  seems  to  have  been  assumed  to  be 
inalienable  in  equity  in  the  same  manner  as  a  legal  contingent 
remainder.  The  result  deduced  was  that  the  contingent  remain- 
der did  not  pass  to  a  trustee  in  bankruptcy.  This  may  perhaps 
be  upheld  on  the  ground  that  such  an  assignment  meant  a  forced 
sale  by  the  bankruptcy  court  and  that  rather  than  permit  such 
a  sale  the  bankruptcy  act  must,  like  the  statute  relating  to 
execution  sales,  be  construed  as  not  passing  the  equitable  interest 
to  the  trustee. 

§378.  Conclusion:  The  purpose  in  pointing  out  the  juris- 
diction of  a  court  of  equity  over  transfers  of  reversions,  vested 
remainders  and  contingent  remainders  is  this:  Our  Supreme 
Court  when  it  followed  the  New  York  statutory  definition  of 
vested  remainders  in  Boatman  v.  Boaiman^^  showed  a  strong 
desire  to  make  remainders,  which  were  contingent  according  to 
the  feudal  definition,  alienable.  On  the  other  hand,  in  a  number 
of  cases  where  the  remainder  was  vested  according  to  the  feudal 
definition  but  defeasible,  the  court  has,  by  what  are  believed  to 
he  unsound  processes  of  interpretation,  implied  or  reflected  back 
a  condition  precedent  in  form  of  survivorship  in  order  that  the 
remainder  may  be  contingent  and  inalienable. '*•'''     This  indicates 

*2Ante,  §§  88,  316.  45  Furnish  v.  Rogers,  154  111.  569; 

43  212  111.186.  Hill    V.    Hill,    264    111.    219;    ante, 

44  198  111.  414;  ante,  §  .365.  §  349. 

408 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§379 

a  feeling  on  the  part  of  the  judges  that  the  feudal  distinction 
between  vested  and  contingent  remainders  as  a  test  of  alien- 
ability does  not  answer  the  needs  of  justice  in  particular  cases. 
They  are  right.  It  does  not.  The  way  out  is  not  to  confound 
the  law  of  real  property  by  calling  contingent  remainders  vested 
or  making  vested  remainders  contingent,  as  the  exigencies  of 
sustaining  or  setting  aside  a  conveyance  demand,  but  to  develop 
tlie  legitimate  and  settled  jurisdiction  of  courts  of  equity  in 
setting  aside  transfers  of  reversions  and  remainders  which  are 
vested  in  the  feudal  sense  and  giving  or  refusing  specific  per- 
formance of  transfers  of  contingent  remainders  which  are  in- 
alienable at  law.  But  even  when  this  is  done  the  guardian's 
sale  may  elude  control  by  a  court  of  equity.  If  the  ward's 
interest  is  a  reversion  or  vested  remainder,  it  is  alienable  and 
the  decree  of  the  court  permitting  it  cannot  be  attacked  col- 
laterally. If  the  ward's  interest  is  a  contingent  remainder  the 
statutory  power  to  make  even  a  contract  ma}-  be  lacking.  If 
that  be  so  then  one  of  two  courses  only  is  open  to  the  court. 
Either  it  must  hold  that  a  reversion  or  remainder  vested  but 
defeasible  is  not  subject  to  a  guardian's  sale  or  that  the  feudal 
distinction  between  vested  and  contingent  remainders  is  the  test 
of  the  validity  and  propriety  of  a  guardian's  sale.  It  should 
not  by  forced  constructions  make  the  remainder  contingent  or 
vested  according  as  it  believes  the  conveyance  should  be  set  aside 
or  sustained. 

TITLE   TX. 
ATTORNMENT. 

§  379.  Attornment  no  longer  necessary  for  the  transfer  of 
reversions  and  vested  remainders:  Tuder  the  feudal  law  it 
was  necessary  to  tiie  validity  of  the  conveyance  of  a  reversion 
or  vested  renuiinder  by  grant  that  the  tenant  in  possession  attorn. 
Without  attornment  the  grant  was  void ;  no  title  passed.'*"  It 
would  appear,  however,  that,  upon  the  transfer  of  a  reversion  by 
will,  by  special  custom,  befoi-e  the  Statute  of  Wills  of  Tien.  VIII, 
no  attornment  was  necessary."*"     A  fortiori,  none  was  necessary 

"Lit.    §5  551,    567-569,   1    Gray's  Kev.  481,  490  e^  se(/;  a/i/f,  §  43. 

Cases   on   Prop.,   2nd   ed.    353,   354.  *7  Lit.  §§167,  586,  1  Gray's  Cases 

See  also  "The  Mystery  of  Seisin,"  on  Prop.,  1st  ed.  451;   ante,  §43. 
by  F.  W.  Maitland.     2  Law  Quart. 

409 


§  379]  FUTURE   INTERESTS  [Ch.  XV 

^vllen  a  reversion  was  conveyed  by  Avill  operating  under  a 
statute.^ '^  So,  also,  in  conveyances  operating  under  the  Statute 
of  Uses  of  27  Hen.  VIII,  attornment  was  no  longer  necessary. 
Thus,  the  bargain  and  sale  of  a  reversion  passed  the  title  without 
attornment.^'*  So  zealous,  too,  were  the  courts  to  sustain  con- 
veyances, and  dispense  with  the  requirement  of  attornment  that 
an  instrument  in  form  the  grant  of  a  reversion,  would,  if  it 
contained  the  recital  of  a  consideration,  be  construed  a  bargain 
and  sale,  so  that  the  deed  would  operate  to  pass  a  legal  title  with- 
out attornment.""*  The  common  law  requirement  of  attornment, 
however,  still  continued  to  exist.  The  statute  of  32  Hen.  VIII,^^ 
which  enabled  the  grantee  of  a  reversion  to  take  advantage  of 
covenants  and  conditions  in  a  lease  did  not  do  away  with  it,  and 
its  expurgation  from  the  law  of  England  did  not  occur  till  the 
statute  of  Anne.^-  In  this  countrj^,  many  states  have  re-enacted 
the  statute  of  Anne.^"^  In  at  least  one  jurisdiction  where  there 
was  no  such  statute,  attornment  has  been  held  to  be  no  longer 
necessar}^  because  such  a  requirement  was  a  rule  of  the  feudal 
land  law  unsuited  to,  and  inconsistent  with,  our  laws,  customs 
and  institutions.^* 

In  this  condition  of  the  history  of  the  law  regarding  attorn- 
ment, the  results  reached  by  our  Supreme  Court  have  a  special 
interest.  We  have  the  dictum  of  the  court  in  Fisher  v.  Veer- 
ing^'' that  attornment  was  still  necessary  in  this  state  in  1871. 
This  was  rested  upon  two  grounds:  First,  that  the  statute  of 
Anne  which  abolished  attornment  in  England  was  not  in  force 
here;  and  second,  that  the  statute  of  32  Hen.  VIII  which  enabled 
the  grantee  of  a  reversion  to  take  advantage  of  covenants  and 

48  In  Biggerstaff  v.  Van  Pelt,  207  2  Gray 's  Cases  on  Prop.,  2nd  eel. 
111.  611,  there  is  no  suggestion  that  321,  and  2  Starr  and  Curtis,  111. 
upon    a    transfer    of    the    reversion       Stats.    (1896),  p.   2515. 

by   will   any  attornment   was  neces-  ^2  4  Anne,  ch.  16,  sec.  9 ;  1  Gray 's 

sary;  ante,  §43.  Cases  on  Prop.,  2nd  ed.  355. 

49  Co.  Lit.  309a,  b,  1  Gray  's  Cases  53  1  Stimson  's  Amer.  Stat.  Law, 
on    Prop.,    2nd    ed.    354;     Edward  §§2008,2009. 

Fox  '8   Case,    8    Co.    93b ;    1    Gray 's  si  Perrin  v.  Lepper,  34  Mich.  292 ; 

Cases  on  Prop.,   1st  ed.  489;    ante,  1    Gray's    Cases   on    Prop.,    1st    ed. 

§  43.  448. 

50  Edward  Fox's  Case,  8  Co.  9.3b;  55  60  111.  114;  1  Gray's  Cases  on 
1  Gray's  Cases  on  Prop.,  1st  ed.  Prop.,  1st  ed.  446.  Also  Scheldt  v. 
489;  po«^  M56;  o»te,  §§62,  75.  Belz,     4    111.     App.     431,     435-436; 

5132   Hen.   VIU.  Ch.   34,   sec    1;       Hayes  1;.  Lawver,  83  111.  182. 

410 


Ch.  XV]  KEVERSIONS    AND    KEMAINDKHS  [§-380 

conditions  in  a  lease,  and  wiiieli  was  conceded  to  l)e  in  force 
here,  did  not  abolish  attoimnent.  No  notice  was  taken  of  the 
fact  that  a  deed,  in  the  common  form  in  use  in  this  state,  reciting 
a  consideration,  miglit  take  effect  as  a  bargain  and  sale,^^"  thus 
dispensing  with  the  necessity  of  attornment.  The  natural  in- 
ference would  be,  therefore,  that  our  Supreme  Court  regarded 
the  conveyance  of  a  reversion  under  the  law  as  it  stood  in  1871 
as  absolutely  void  if  there  was  no  attornment. 

If  the  two  grounds  for  the  dictum  of  Fisher  v.  Deering  are 
sound  (as  indeed  they  seem  to  be),  then  sec.  14  of  the  Landlord 
and  Tenant  Act  of  1873  ^'  could  hardly  operate  to  abolish  attorn- 
ment, because  that  section  is  practically  a  copy  of  the  operative 
part  of  the  statute  of  32  Hen.  VIII  which,  it  was  conceded  in 
Fisher  v.  Deering,  w-as  insufficient  to  abolish  attornment.  The 
holding,  however,  that  attornment  was  still  necessary  here  was 
such  an  absurd  survival  of  the  principles  of  feudal  land  law  that 
in  Barnes  v.  Northern  Trust  ('o.;'^  our  Supreme  Court  seized 
upon  this  sec.  14  of  the  Landlord  and  Tenant  Act  to  hold  that 
by  it  attornment  had  been  abolished  in  this  state.^*^ 

The  most  careful  conveyancer,  therefore,  can  hardly  doubt 
that  attornment  is  no  longer  required  in  Illinois.  It  would, 
however,  lead  to  the  better  security  of  titles,  and  especially  those 
depending  upon  the  transfer  of  a  reversion  before  1873,  if  it 
should  be  held  that  attornment  never  had  been  necessary  here  or, 
at  least,  that  every  deed  reciting  a  consideration,  so  that  it  could 
take  eff^ect  as  a  bargain  and  sale  under  the  Statute  of  Uses, 
would  operate  as  such  and  hence  be  valid  to  pass  a  title  without 
attornment. 

TITLE   X. 

DESCENT  OF  REVERSIONS,  REMAINDERS  AND  OTHER  FUTURE 
INTERESTS— FROM    WHOM    TRACED. 

§380.  At  common  law:  The  common  law  rule  was  that 
descent  was  traced  from  the  person  last  actually  seized.     To 

56  Post,   §456;   ante,   §§62,   75.  111.  506,  a  vested  remainder  after  a 

BT  R.  S.  1874  ch.  80  sec.  14.  life  estate  was  conveyed  by  deed  in 

58  169  111.  112,  followed  by  Bor-  1867.  It  does  not  appear  that  the 
dereaux  v.  Walker,  85  111.  App.  86.  life  tenant  ever  attorned,  but  no 
Same  result  reached  in  Howland  v.  jxiint  wa-s  made  of  the  lack  of  at- 
White,  48  111.  App.  2:56.  torninent. 

59  In    O'Melia    v.    Mullarky,    124 

411 


§  380]  FUTURE   INTERESTS  [Ch.  XV 

this  there  was  the  exception  that  descent  could  always  be  traced 
from  the  first  purchaser,  even  though  he  was  not  actually  seized, 
as  if  he  had  been.  The  application  of  this  principle  and  its 
exception  became  especially  important  where  the  question  of  the 
descent  of  future  interests  of  which  there  was  no  actual  seisin, 
— viz :  future  interests  after  freeholds  as  distinguished  from 
future  interests  after  terms  for  years — was  involved.  For  in- 
stance, if,  subject  to  a  life  estate  in  A,  B  had  a  remainder  in  fee 
and  died  before  A,  B  was  not  actually  seized.  Nevertheless,  on 
his  death  descent  was  traced  from  him  because  he  was  the  first 
purchaser.^'^  If  B  died  before  A  leaving  as  his  heir  C,  and  C 
thereupon  died  before  A,  on  A's  death  descent  was  traced  from 
B  and  not  from  C.  If  by  deed,  or  by  the  marriage  of  B,  a 
woman,  Avith  A,  there  was  created  a  life  estate  in  A  and  a  rever- 
sion in  the  grantor  or  the  wife  B,  then  on  the  grantor's  or  B's 
death  before  A  leaving  as  heir  C,  who  died  before  A,  descent 
would  be  traced  from  the  grantor  or  B,  who  was  the  first  pur- 
chaser or  person  last  actually  seized  of  an  estate  of  inheritance.^ ^ 
If  by  will  or  by  assignment  of  dower  A  became  possessed  of  a 
life  estate  and  there  was  an  intestacy  as  to  the  reversion,  which 
passed  to  B,  then  if  B  died  before  A  leaving  C  as  his  heir,  and 
then  C  died  before  A,  descent  would  be  traced  from  B  and  not 
from  C,  for  C  was  never  seized  and  was  not  a  purchaser.^ ^  g^ 
if  the  future  interest  were  a  contingent  remainder  or  a  con- 
tingent executory  interest  in  B,  and  the  contingent  remainder- 
man or  executory  devisee  died  before  the  first  taker,  leaving 
his  heir  C,  who  also  died  before  the  first  taker,  leaving  as  his 
heir  D,  descent  was  traced  from  the  first  purchaser  B  and  not 
from  C.63 

60  Wendell  v.  Crandall,  1  N.  Y.  he  dies  under  twenty-one  without 
491;  2  Denio  9.  issue,  then  to  B  in  fee.     B  died  be- 

61  Bates  V.  Schraeder,  13  Johns.  fore  A  and  although  A  is  the  heir 
260;  Jackson  i;.  Hendricks,  3  Johns. '  at  law  of  B,  yet  on  the  death  of 
Cas.  214;  Lawrence  v.  Pitt,  46  N.  A  the  executory  devise  devolves 
C.  344  (prior  to  1851).  upon  the  next  heir  of  B)  ;   Buck  v. 

B2  Dickenson  v.  Holloway,  6  Munf.  Lantz,  49  Md.  439   (to  M  for  life; 

422    (1819,  Va.)  ;   Lawrence  v.  Pitt,  then  to  her  children,  but  if  no  child, 

46   N.    C.    344;    Jackson   v.    Hilton,  then   to   M.   H.,  sister  of   the  gran- 

16  Johns.  96.  ,  tor.     M.  H.   died  leaving  M  as  one 

63  Barnitz  v.  Casey,  7  Cranch  (U.  of  her  heirs.     M  then  died  without 

S.)   456   (devise  to  A  in  fee  and  if  children.     Held,  descent  was  traced 

412  > 


Ch.  XV] 


HEVEKSIONS   AND   KEMAINUEKS 


S  ''^Hl 


i;  381.  The  rule  of  the  common  law  tracing-  descent  from 
the  person  last  seized  or  from  the  first  purchaser,  has  been 
abolished  by  the  Illinois  Statute  on  Descent  under  which  de- 
scent is  traced  from  the  person  last  entitled:  In  some  states 
the  Statute  on  Descent  is  ex])licit  that  descent  is  to  be  traced 
from  the  person  last  entitled."^  Our  Statute  on  Descent  *•"' 
begins,  "that  estates,  botli  real  and  personal,  of  resident  and 
non-resident  proprietors  in  this  state  dying  intestate,  or  whose 
estates  or  any  part  thereof  shall  be  deemed  and  taken  as  in- 
testate estate,  after  all  just  debts  and  claims  against  such  estate 
are  fully,  paid,  shall  descend,"  etc.     This  has  been  the  form  of 


from  M.  H.  to  her  heirs  living  at 
the  death  of  M,  so  that  M  did  not 
take  as  an  heir  and  thereupon  pass 
to  her  heirs  the  share  which  M  had 
taken  by  descent  from  M.  H.)  ; 
Garrison  v.  Hill,  79  Md.  75  (to  E 
for  life,  then  to  her  children,  but 
if  she  had  none,  then  to  her  brother 
absolutely.  The  brother  died  be- 
fore E  and  she  died  without  issue, 
having  devised  all  her  property  to 
her  mother.  E  was  an  heir  of  her 
brother,  and  the  mother,  claiming 
by  devise  from  E,  contended  for  the 
share  of  the  brother's  remainder 
which  had  descended  to  E.  Held, 
the  mother  was  not  entitled.  The 
heirs  of  the  brother  only  were  en- 
titled who  were  ascertained  as  such 
at  the  death  of  E,  thus  excluding 
E)  ;  Jenkins"  v.  Bonsai,  116  Md. 
629  (to  the  daughter  for  life;  if 
she  leaves  no  children  then  to  the 
testator's  son  T.  M.  J.  absolutely. 
T.  M.  J.  died  intestate  before  the 
daughter  leaving  a  wife  but  no  de- 
scendants. The  widow  died  leav- 
ing a  will  in  which  L.  B.  was  named 
as  executor.  Upon  the  death  of  the 
daughter  without  descendants  it  was 
held  that  the  remainder  of  T.  M.  J., 
though  descendible,  did  not  jiass  to 
T.  M.  J.  's  widow  and  therefore 
did  not  pass   by   her  will.     Descent 


was  to  the  heirs  of  T.  M.  J.  at  the 
death  of  the  life  tenant,  at  which 
time  T.  M.  J. 's  widow  was  dead. 
Held,  also,  that  the  rule  applied 
to  personal  property  as  well  as  to 
real  estate). 

"*  Cook  V.  Hammond,  4  Mason  (U. 
S.)  467,  (Story,  J.)  Massachusetts 
Act:  "When  any  person  shall  die 
seized  of  any  lands,  tenements  or 
hereditaments,  or  of  any  right  there- 
to, or  entitled  to  any  interest  there- 
in." 

Kean's  Lessee  v.  Eoe,  2  Harr. 
103,  113  (Del.  1841).  (The  statute 
read:  "When  any  person  having 
title  or  any  manner  of  right,  legal 
or  equitable.") 

Hicks  V.  Pegues,  4  Rich.  Eq.  (S. 
C.)  413.  Act  of  1791  read: 
*  *  Where  any  person  possessed  of, 
interested  in,  or  entitled  unto,  a 
real  estate." 

Lakey  v.  Scott,  15  N.  Y.  Weekly 
Digest  148.  Evidently  a  New  York 
statute  changing  the  law  from  what 
it   had   formerly   been. 

Moore  v.  Rake,  26  N.  J.  L.  574. 
582  (1857).  Statute  read:  "When 
any  person  shall  die  seized  of  any 
lands,  etc.,  in  his  or  her  own  right 
in  simple  fee."  Held,  "die  seized" 
was  the  same  as  "entitled." 

•••■•  R.  S.  1874,  ch.  39,  sec.  1. 


413 


§381]  FUTURE   INTERESTS  [Ch.  XV 

our  Statute  on  Descent  since  1829.^^  It  is  now  settled  by  North 
v.  Graham^''  that  "estates"  in  this  Act  refers  to  estates  to 
which  the  deceased  is  ' '  entitled, ' '  so  that  descent  is  traced  from 
the  person  last  entitled.  In  that  case  a  grantor  upon  a  con- 
veyance to  a  charitable  corporation  became,  according  to  the 
settled  view  in  this  State,*'^  entitled  to  a  possibility  of  reverter 
which  gave  him  the  right  to  obtain  back  his  fee  again  upon 
the  dissolution  of  the  grantee  corporation  without  debts.  During 
the  life  of  the  corporation  the  grantor  died  leaving  surviving 
him  as  his  only  heirs  three  daughters.  One  daughter  died  un- 
married without  issue,  leaving  as  her  only  heirs  her  two  sisters. 
Of  the  two  remaining  sisters  one  died  married,  leaving  a  child. 
That  child  died  leaving  as  her  only  heir,  her  father.  Subse- 
quently the  corporation  dissolved.  According  to  the  common 
law  doctrine  of  descent  the  surviving  daughter  of  the  grantor 
would  have  taken  the  whole  estate,  while  under  the  rule  as 
generally  adopted  bj*  statute  in  this  country,  descent  would  have 
been  traced  from  the  person  last  entitled  in  regular  succession, 
and  the  surviving  daughter  of  the  grantor  would  have  taken  an 
undivided  one  half  interest  and  the  grantee  of  the  brother-in- 
law  the  other  undivided  one  half.  The  latter  view  and  the 
results  depending  thereon  were  adopted  by  the  Court. 

The  soundness  of  the  result  reached  is  clear.  The  natural 
meaning  of  the  word  ''estates,"  as  used  in  the  Statute  on 
Descent,  is  "estates  to  which  deceased  shall  be  entitled."  Such 
it  is  believed  is  the  primary  meaning  of  the  language  used  at 
the  time  it  was  used  by  the  legislature.  To  say  that  it  referred 
only  to  estates  to  which  the  deceased  died  actually  seized,  would 
be  far-fetched  and  uncalled  for.  Such  a  construction  upon 
language  substantially  similar  has  been  adopted  in  Georgia,'^^ 
and  Pennsylvania."'^  The  interpretation  of  the  Illinois  Act 
adopted  by  our  Court  is  fortified  by  reason  of  the  fact  that  in 

66  Laws  1829,  p.   191,  sec.  43;   R.  67  235  111.  178. 
S.    184.5,  ch.    109,   sec.   46;    1   A.  &  68  Life  Assn.   v.  Fassett,   102  111. 
D.  R.  E.  S.  505.     Prior  to  1829  the  315,    323;    Mott    i;.    Danville    Semi- 
statutes   seem   to  have   read:    "The  nary,    129    111.    403;     Presbyterian 
estates,   both    of   resident    and    non-  Church  v.  Venable,  159  111.  215. 
resident  proprietors     *     *     *     ghall  eg  Thompson  v.   Sandford,   13  Ga. 
descend."     See  1  A.  &  D.  R.  E.  S.  238;  Oliver  v.  Powell,  114  Ga.  592, 
439,  450,  ordinance  of  1787,  sec.  2,  600. 
Laws  1819,  p.  223,  see.  21.  ToCote's  Appeal,  79  Pa.  St.  235. 

414 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§  382 

the  Act  real  and  personal  property  are  treated  together  so  far 
as  the  rules  for  tracing  descent  are  concerned.  The  common 
law  rule  never,  of  course,  had  any  relation  to  the  distribution 
of  personal  proi)erty.  The  fact  then  that  real  and  personal 
property  follow  the  same  rules  of  descent  and  the  incongruity 
of  applying  the  common  law  rule  to  personal  property,  is  a 
strong  argument  that  the  rule  relating  to  personal  property 
was  intended  to  be  applied  in  the  ease  of  real  estate.  This  argu- 
ment was  potent  in  Hillhouse  v.  Chester;'''^  Thompson  v.  San- 
ford;'''^  and  Cote's  Appeal.''-  Furthermore,  the  Illinois  Act 
follows  the  general  scheme  of  the  Statute  of  Distributions  of 
Charles  II,  relating  to  personalty.  This  was  held  in  Hillhouse 
V.  Chester  '^  to  be  a  sound  argument  in  favor  of  a  construction 
of  the  Statute  which  repudiated  the  common  law  rule  that 
descent  must  be  traced  from  the  person  last  seized.  The  com- 
mon law  mode  of  tracing  descent  is,  is  it  submitted,  extremely 
foreign  to  the  customs  and  practice  in  this  state  and  in  the 
country  at  large,  and  this  was  found  in  Hillhouse  v.  Chester  "^^ 
to  be  a  strong  argument  for  a  construction  of  the  Statute  on 
Descent  which  abolished  the  common  law  rule. 

§  382.  There  should  be  no  distinction  in  the  tracing  of 
descent  between  reversions  and  vested  remainders  on  the  one 
side  and  contingent  remainders  and  executory  interests  on  the 
other:  Since  the  mode  of  tracing  descent  from  the  person  last 
entitled  depends  upon  the  Statute  on  Descent  there  can  be  no 
ground  for  saying  that  the  descent  of  reversions  and  vested 
remainders  is  to  be  traced  in  one  way  and  the  descent  of  con- 
tingent remainders  and  contingent  executory  interests  in  an- 
other. If  the  contingent  remainderman  dies  before  the  life 
tenant  his  right  or  interest  passes  by  descent  to  his  heir  and 
upon  that  heir's  death  before  the  contingency  happens,  to  his 
heirs,  and  so  on.  There  is  no  ditlficulty  in  this  because  the  con- 
tingent remainderman  has  the  right  to  secure  an  estate.  It 
passes  by  descent  even  under  the  feudal  land  law."^  The  legis- 
lature has  full  power  to  say  how  that  descent  shall  be  traced 
and  it  has  spoken.  In  Georgia,  however,  where  the  descent 
of  reversions   and  vested  remainders  is  from  the  person  last 

T13  Day  (Conn.)  166,  210.  ■*  3  Day   (Conn.)    166,  210. 

72  13  Ga.  2:58.  "'Id. 

7379  Pa.  St.  23o.  -<'Aiitc,  §324. 

415 


§  382]  FUTURE   INTERESTS  [Ch.  XV 

entitled,'"  the  descent  of  a  contingent  remainder  or  contingent 
executory  interest  is  traced  from  the  first  purchaser  at  the  time 
the  contingency  happensJ^  It  looks  as  if  our  Supreme  Court 
had  dallied  with  the  same  distinction.  In  North  v.  Graham  '^^ 
a  possibility  of  reverter  was  involved  which  was  inalienable 
inter  vivos  at  common  law,  like  a  contingent  remainder,  and 
from  the  feudal  point  of  view  after  the  Statute  of  Quia  Emptores 
had  abolished  tenure,  was  no  more  than  a  remote  future  right. 
Nevertheless,  before  the  Statute  of  Quia  Emptores  it  was  in 
effect  a  reversion.  Our  Supreme  Court  emphasized  the  fact 
that  "the  right  or  interest  under  the  possibility  of  reverter  is 
very  like,  though,  as  we  have  seen,  not  strictly  identical  with, 
a  revei-sion, ' '  so  thus  indicating  that  in  tracing  its  descent  the 
rule  applicable  to  a  reversion  would  be  followed.  On  the  same 
day  that  the  opinion  of  the  court  in  North  v.  Graham  was  handed 
down,  the  opinion  of  the  court  in  Golladay  v.  Knock  ^^  was 
filed.  In  that  case  there  was  a  contingent  remainder  after  a 
life  estate  in  case  the  life  tenant  died  without  leaving  children, 
to  "Moses  Golladay  and  his  heirs."  Moses,  the  contingent  re- 
mainderman, died  during  the  life  of  the  life  tenant  leaving  as 
one  of  his  heirs  his  son  William.  William  made  a  warranty 
deed  to  Fuller  and  died  before  the  life  tenant  leaving  the  com- 
plainants as  his  heirs.  It  was  held  that  the  complainants  were 
entitled  as  against  Fuller.  This  goes  on  the  ground  that  the 
doctrine  of  lineal  warranty  did  not  apply,^^  or  that  descent  was 
traced  from  Moses  when  the  remainder  vested,  so  that  there 
was  never  any  descent  to  William.  It  could  not  have  gone  on 
the  ground  that  the  limitation  to  "Moses  and  his  heirs"  meant 
Moses  "or  his  heirs"  without  running  necessarily  into  the 
question  of  lineal  warranty.  If  ' '  and"  had  been  construed  "  or  " 
the  limitations  would  have  been  to  Moses,  or  if  he  were  dead,  to 
his  heirs.  This  would  have  meant  his  heirs  at  the  time  of  his 
death,^'^  and  so  would  have  included  William,  and  the  question 
of  lineal  warranty  would  have  arisen.  There  is  no  indication 
that  the  court  was  intending  to  deal  in  any  way  with  the  doc- 

77  Oliver  v.  Powell,   114  Ga.   592,  79  235  111.  178.  ^ 
600 ;   Thompson  v.  Sandf  ord,  13  Ga.           so  Jd.,  184. 

238.  «i  235  111.  412. 

78  Payne   v.   Eosser,   .53    Ga.    662;  ^^  Ante,  §323. 
Collins  V.  Smith,  105  Ga.  52.5,  532.  »3  post,   §  571. 

416 


Cll.  XVJ  HKVEKSIONS    AND    KEMAINDERS  [i  -i^'-^ 

trine  of  lineal  wari-anty.  The  only  langua<?e  used  by  the  court 
was  "Xo  title  ever  vested  in  him  [William].  His  children  are 
not  estopped  by  the  covenants  in  this  deed  for  the  reason  that 
they  are  not  asserting;  a  title  by  descent  from  their  father,  but 
are  claiming  under  the  will  of  George  GoUaday,  as  heirs  of 
Moses  Golladay."  If  this  be  read  "the  complainants  were 
claiming  under  the  will  a  contingent  remainder  as  heirs  of 
Moses,"  it  would  amount  to  a  statement  that  descent  was  being 
traced  from  Moses ;  but  it  could  hardly  do  that  and  at  the  same 
time  ignore  North  v.  (iraham.  It  is  not  unlikely  that  the  court 
thought  by  taking  "heirs"  in  the  limitation  to  "Moses  and  his 
heirs, "  as  a  word  of  purchase,  the  persons  who  would  have  been 
Moses'  heirs  if  he  died  at  the  time  of  the  vesting  of  the  remain- 
der, were  designated.^''  The  statement  of  such  a  position  indi- 
cates the  difficulty  in  supporting  it.**''  Perhaps  the  best  course 
is  to  put  the  ease  down  as  not  deciding  anything  about  lineal 
warranty,  the  tracing  of  descent,  or  the  meaning  of  the  phrase 
to  "Moses  and  his  heirs." 

TITLE   XI. 

ADVERSE  POSSESSION  AGAINST  REVERSIONERS  AND 

REMAINDERMEN. 

Topic  1. 
Where  One  Enters  Under  a  Conveyance  from  the  Life 

Tenant. 
§  383.     Where  one  enters  under  a  conveyance  purporting  to 
transfer  the  life  estate  only:     if  the  conveyance  l)y  the  life 

s^  The  writer  saw  the  opinion  of  letter  from  the  justice)  shows  that 
Mr.  Justice  Vickers  in  Golladay  v.  the  latter  regarded  the  complainants 
Knock  after  it  had  been  filed  and  as  taking  as  a  class  of  persons  who 
while  the  case  was  pending  on  a  would  in  a  certain  event  receive  the 
petition  for  rehearing.  He  wrote  estate.  There  would  seem,  therefore, 
to  the  learned  justi^'e  raising  the  to  have  been  no  intention  to  make 
point  that  under  the  decision  in  any  decision  counter  to  North  v. 
North  V.  Graham  the  contingent  re-  Graham,  or  to  hold  that  the  com- 
niainder  descended  from  Moses  to  mon  law  method  of  tracing  descent 
William  and  from  William  to  the  would  be  used  where  a  contingent 
complainants  and  that  the  warranty  remainder  passed  by  descent,  while 
of  William  did  not  work  any  estop-  a  different  method  of  tracing  de- 
pel  because  the  doctrine  of  lineal  scent  would  be  used  where  a 
warranty  was  not  in  force.  The  reversion  or  vested  remainder 
writer's  letter  of  July  8,  1908,  to  descended. 
Mr.  Justice  Vickers  (in  reply  to  a  ^^  Ante,  §158;  post,  §577. 
Kales  Fut.  Int. — 27                            4^7 


§384] 


FUTURE   INTERESTS 


[Ch.  XV 


tenant  purports  to  convey  only  the  life  estate,  there  is  of  course 
no  adverse  possession  against  any  one,  much  less  against  the 
remainderman,^*'  prior  to  the  death  of  the  original  life  tenant.*' 
Even  upon  the  death  of  the  life  tenant  the  inference  might  well 
be  that  the  holding  over  was  in  conscious  subordination  to  the 
true  owner  and  therefore  not  adverse  until  some  act  or  expres- 
sion of  intention  indicated  the  contrary  and  that  possession  as 
of  right  was  claimed.** 

§  384.  Where  one  enters  under  a  conveyance  by  the  life 
tenant  purporting-  to  transfer  the  fee:  If  the  conveyance  is 
tortious — by  fine,  feoffment  or  recover}^ — a  ground  of  forfeiture 
arises  by  operation  of  law ;  but  under  Taylor  v.  Horde  *"  no 
forfeiture  of  the  life  estate  actually  occurs  until  the  one  entitled 
to  enter  elects  to  declare  it  in  some  appropriate  manner.  Until, 
therefore,  the  forfeiture  is  complete,  the  possession  of  the  one 
entering  under  the  tortious  conveyance  is  not  adverse  to  the 
remainderman.^^  The  moment,  however,  that  the  original  life 
tenant  dies,  the  possession  of  the  tortious  transferee  becomes 


86  For  the  sake  of  simplicity, 
whenever  vested  remainders  are  re- 
ferred to,  reversions  are  also  in- 
eluded. 

87  See  Eohn  v.  Harris,  130  111. 
525;  Chicago,  etc.,  By.  Co.  v. 
Vaughn,  206  111.  234;  Blair  v.  John- 
son, 215  111.  552;  Meacham  v.  Bunt- 
ing, 156  111.  586,  594  (possession 
of  original  life  tenant  not  adverse). 

88  See  Bond  v.  O'Gara,  177  Mass. 
139,  where  a  licensee  in  possession 
after  the  termination  of  the  license 
by  the  conveyance  of  the  land  by  the 
licensor  continued  in  possession  and 
it  was  held  that  possession  was  still 
in  conscious  subordination  to  the 
right  of  the  owner  and  not  adverse. 

89  1  Burr.  60. 

90  Jackson  v.  Mancius,  2  Wend. 
(N.  Y.)  357  (held  that  the  life 
tenant  had  not  made  a  feoffment 
and  therefore  no  forfeiture  of  the 
life  estate  occurred;  but  the  court 
went  on  to  say  that  if  such  a  feoff 


ment  were  made  and  a  forfeiture 
occurred  "yet  the  reversioner  is  not 
bound  to  enter  until  the  natural 
termination  of  the  life  estate,  as 
the  law  does  not  require  him  to 
look  after  the  estate,  the  presump- 
tion being  that  the  tenant  in  pos 
session  holds  by  such  a  conveyance 
as  the  tenant  for  life  had  a  right 
to  give");  Wallingford  v.  Hearl, 
15  Mass.  471:  Parker,  C.  J.,  said: 
' '  If  tenant  for  life  acknowledge 
a  fine  for  a  longer  time  than  for 
the  life  of  the  tenant  for  life,  the 
fine  may  be  good;  but  it  is  a  for- 
feiture of  the  estate,  and  he  in  re- 
version or  remainder  may  enter. 
Yet  he  is  not  ol)liged  so  to  do,  for 
he  may  wait  the  termination  of  the 
estate  for  life,  and  has  five  years 
after  that  (Shep.,  "Touch."  14; 
Jenk.,  "Cent."  254)."  See  also 
Stevens  v.  Winship,  1  Pick.  (Mass.) 
317;  Miller  v.  Ewing,  6  Cush. 
(Mass.)    34,  41. 


418 


CH.XVi 


REVERSIONS    AND    REMAINDLHS 


§384 


adverse  to  the  remainflerinan."'  Possession  under  a  tortious 
conveyance  rebuts  any  inference  that  the  possessor  was  liolding 
over  in  conscious  subordination  to  the  remainderman. 

Now  suppose  the  life  tenant  has  conveyed  in  fee  by  deed,  or 
by  bargain  and  sale,  so  that  the  conveyance  has  no  tortious  opera- 
lioii.  Such  a  conveyance  transfers  only  what  the  grantor  has — 
namely,  the  life  estat(>.  It  has  been  intimated  that  such  a  con- 
veyance mif^lit  be  a  cause  of  forfeiture."-  If,  however,  there  is 
no  forfeiture  of  the  life  estate,  th<'  <rrantee  of  the  life  tenant 
becomes  the  holder  of  a  life  estate  pur  auter  vie  and  his 
possession  cannot  be  adverse  to  the  remainderman  during  the 
life  of  the  original  life  teiumt."'-'  Oiu'  English  case  at  least  has 
go)ie  so  far  as  to  determine  that  the  holding  over  after  the  death 
of  the  original  life  teiuuit  by  the  one  entering  under  a  convey- 
ance in  fee  fi'om  the  life  t(Muint  did  not  become  by  that  fact 
alone  adverse  to  the  reniaindin-man.''*  This  must  proceed  upon 
the  ground  that  the  transferee  of  the  life  tenant  was  in  the  same 
position  as  if  he  had  obtained  a  conveyance  expressly  trans- 
ferring oidy  a  life  estate,  and  therefore  must  be  regarded  prima 
facie  as  holding  over  in  conscious  subordination  to  the  remainder- 


91  Doe  V.  Gregory,  2  A,  &  E.  14 
(where  the  husband  entered  upon 
an  estate  by  the  marital  right  in 
lands  of  which  his  wife  was  the  own- 
er for  life,  and  then  he  and  his 
wife  levied  a  fine  in  fee  to  them- 
selves). 

92  Mixter  v.  Woodcock,  154  Mass. 
535  ("if  the  mortgages  executed 
by  her  [the  life  tenant]  may  be  re- 
garded as  acts  of  disseisin,  so  tliat 
the  reversioner  could  have  entered, 
he  was  not  obliged  to  do  so,  but 
could  wait  until  his  right  of  entry 
accrued  upon  her  death");  Rigg 
V.  Cook,  4  Gilm.  (111.)  336  ("And 
where  the  possession  has  been  con- 
sistent with,  or  in  submission  to 
the  title  of  the  real  owner,  notliing 
but  a  clear,  unequivocal  and  notor- 
ious disclaimer  and  disavowal  of  the 
title  of  such  owner,  will  render  the 
possession,  however  long  continued, 


adverse.");    Meacham    v.    Bunting, 
156  111.  586,  594. 

93  Mixter  v.  Woodcock,  154  Mass. 
535 ;  Central  Land  Co.  v.  Laidley, 
32  W.  Va.  134;  Higgins  v.  Crosby, 
40  111.  260;  Orthwein  v.  Thomas, 
127  111.  554,  564,  568-570;  Mettler 
V.  Miller,  129  111.  630;  Peterson  v. 
Jackson,  196  111.  40;  Turner  v. 
Hause,  199  111.  464;  C.  P.  &  St.  L. 
R.  Co.  V.  Vaughn,  206  111.  234; 
Bcchdoldt  1).  Bechdoldt,  217  111.  537; 
Weigel  V.  Green,  218  111.  227; 
Schroeder  v.  Bozarth,  224  111.  310; 
Willhite  V.  Berry,  232  111.  331;  Mc- 
Fall  V.  Kirkpatrick,  236  111.  281; 
Bartlow  v.  C.  B.  &  Q.  R.  Co.,  243 
111.  332;  Cassem  v.  Prindle,  258  111. 
11  (life  estate  passed  by  condem- 
nation) ;  Allison  v.  White,  285  111. 
311. 

94  Doe   I'.   Hull,  2  Dowl.  &  R.  38. 


419 


§  385]  FUTURE   INTERESTS  [Ch.  XV 

man.  It  is  believed,  however,  that  in  American  jnrisdictions 
today  the  holding  over  would  be  regarded  as  prima  facie  adverse 
from  the  date  of  the  death  of  the  original  life  tenant.^^ 

Topic  2. 

"When  the  Life  Tenant  Is  Disseised  and  the  Remainder 

Is  Vested. 

§  385.  Results  reached  by  the  cases  generally:  It  is  clear 
that  the  life  tenant,  after  the  statutory  period  of  adverse  posses- 
sion, is  barred  from  again  securing  possession.  The  difficult 
question  is:  what  is  the  effect  of  the  running  of  the  statute 
against  the  life  estate  upon  the  reversion  or  vested  remainder? 

It  would  have  been  a  very  simple  answer  to  say  that  the  life 
estate  had  been  extinguished  and  that  the  vested  remainderman 
had  an  immediate  right  to  possession,  so  that  the  continued 
possession  of  A  would  be  adverse  to  him.  Indeed,  it  might  have 
been  urged  that  this  followed  from  the  fact  that  the  running  of 
the  statute  operated  to  extinguish  the  life  estate,  and  that  a 
vested  remainder  is  by  its  very  definition  one  which  stands  ready 
throughout  its  continuance  to  take  effect  in  possession  whenever 
and  however  the  preceding  freehold  estate  determines.^®  Such  a 
view  would  have  the  advantage  to  the  adverse  claimant  of  caus- 
ing the  statute  to  begin  to  run  against  the  remainderman  as  soon 
as  it  had  run  against  the  life  tenant.  It  would  have  had  the 
disadvantage  to  him  that  at  once  upon  the  running  of  the  statute 
against  the  life  tenant  the  remainderman  would  be  entitled  to 
possession. 

The  courts  seem  very  clearly  to  have  rejected  this  view  and 
to  have  proceeded  upon  the  supposition  that  when  the  statute 
has  run  against  the  life  tenant,  the  adverse  holder  obtains  an 
estate  of  some  sort  which  is  good  against  the  remainderman  as 
long  as  the  life  estate,  which  is  extinguished  by  the  adverse  pos- 
session, would  have  been  good  against  the  remainderman — that 
is  to  sa}',  in  the  usual  case,  during  the  life  of  the  original  life 
tenant.    Accordingly,  it  has  been  regularly  held  that  no  right  to 

95  In   SafFord   v.   Stubbs,   117   111.  of    any    instrument   creating    a   lif^ 

389,  such  was  the  holding  where  the  estate  in  the  grantor, 

grantee  in  fee  from  the  life  tenant  96  Gray 's   Eule   against   Perpetui- 

had  no  actual  or  constructive  notice  ties,  §  101. 

420 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§386 

posHcssioii  arises  on  tlie  part  of  tlie  remainderman  until  the 
actual  death  of  the  original  tenant  for  life,  even  though  the 
remainder  be  vested  and  though  the  statute  has  run  against  the 
original  life  tenant.  Tn  the  cases,  therefore,  where  the  rever- 
sioner or  vested  remainderman  has  sued  for  possession  after  the 
life  estate  has  been  barred,  l)ut  l)efore  the  death  of  the  original 
life  tenant,  the  action  has  failed/'"  So  where  the  reversioner 
or  vested  remainderman  sues  for  possession  after  the  death  of 
the  original  tenant  for  life,  the  possession  of  the  disseisor  of  the 
life  tenant  does  not  become  advei'se  to  the  reversioner  or  vested 
remainderman  until  the  actual  death  of  the  original  life  tenant. 
Hence,  the  disseisor  may  still  be  ousted  by  the  remainderman, 
though  the  statute  has  first  run  against  the  life  tenant  and  then 
the  possession  of  the  disseisor  has  continued  for  the  statutory 
period  during  the  life  of  the  original  life  tenant.^^ 

§  386.  What  estate  does  the  disseisor  of  the  life  tenant  have 
after  the  statute  has  run  against  the  life  tenant  only?  If  we 
said  that  the  life  estate  i)assed  to  the  disseisor  and  he  became  a 
tenant  for  the  life  of  the  original  life  tenant,  we  should  be  met 
with  the  general  proposition  that  the  statute  of  limitations 
operates  to  extinguish  the  title  of  him  who  is  barred  and  to  raise 
a  new  and  original  title  in  favor  of  the  disseisor.  If  we  said 
that  the  disseisor  obtains  a  new  and  original  title  in  fee  simple, 
good  against  all  the  world  during  the  life  of  the  tenant  for  life, 
but  subject  to  a  right  to  enter  on  the  part  of  the  remainderman 
upon  the  death  of  the  original  life  tenant,  we  should  run  into 
the  difficulty  that  the  relation  between  the  remainderman  and 
the  disseisor  had  been  so  changed  as  to  prejudice  the  rights  of 
the  remainderman.  For  instance,  what  would  have  been  waste 
on  the  part  of  a  life  tenant  would  not  be  waste  when  committed 
by  the  liolder  of  a  fee,  the  remainderman  being  as  to  him  merely 
one  entitled  to  re-enter  upon  a  future  contingency,  or  the  holder 

97  Shortall     v.     Hinckley,    iil     111.  9«  Dawson    v.    Edwards,    189    111. 

219;    Jacobs    r.    Rice,    .33    111.    370;  60;    Wells   r.   Prince,   9   Mass.  508; 

Gregg   V.    Tesson,    1    Black    (66    U.  Jackson    v.    Schoonmaker,    4    Johns. 

S.)    150;   Higgins  v.  Crosby,  40  111.  (N.  Y.)    390;    Tilson    r.   Thompson, 

260 ;  Kibbie  v.  Williams,  58  111.  30 ;  10    Pick     (Mass.)     359;    Foster    v. 

Moore    v.    Luce,    29    Pa.    St.    260;  Marshall,  22  N.  H.  491. 
Baker  v.  Oakwood,    123  N.  Y.   16; 
Thompson's  Heirs  v.  Green,  4  Ohio 
St.  216. 

421 


§  387]  FUTURE   INTERESTS  [Ch.  XV 

of  what  is  in  appearance  at  least  a  possibility  of  reverter.^^  On 
the  whole,  perhaps  the  least  objcetionable  position  is  that  the 
disseisor  of  the  life  tenant  becomes  the  holder  of  a  new  and 
orijrinal  estate  for  the  life  of  the  original  tenant  for  life. 

i  387.     Illinois  cases  apparently  contra— (1)  Where  the  life 
estate  is  that  of  a  husband  by  the  marital  right  in  his  wife's 
fee — Before  the  first  Married  Woman's  separate  property  act: 
Before  the  first  Married  Woman's  Act  of  1861,  which  gave  to 
married  women  their  separate  property  as  if  they  were  femes 
sole,  the  hnsband  of  every  woman  with  a  fee  simple  had  an  estate 
for  the  joint  lives  of  himself  and  his  wife,  known  as  the  estate 
by  the  marital  right.     If  the  husband  conveyed  this  estate,  the 
grantee  had  an  estate  for  life  pur  miter  vie — namely,  for  the 
joint  lives  of  the  husband  and  wife.     In  that  case  clearly  the 
wife  must  have  become  an  actual  reversioner.     The  wife  or  her 
heirs  could  have  no  right  to  possession  until  the  death  of  the 
husband  or  wife.    No  possession  could,  therefore,  become  adverse 
to  the  wife  or  her  heirs  till  the  death  of  her  husband,  or  till  her 
death.  1     Suppose,  however,  that  the  husband  did  not  convey. 
Suppose  a  disseisor  entered  and  held  possession  for  the  statutory 
period  and  for  such  additional  period  after  as  the  statute  pro- 
vided in  the  case  of  the  disability  of  coverture — namely,  accord- 
ing to  the  Statute  of  James  I,  the  period  of  ten  years  after  the 
coverture  terminated.     Did  he  disseise  both  the  husband  and 
wife  so  that  the   interests  of  both  were  barred   and   the   fee 
acquired  by  the  disseisor  good  against  the  world?     Or  did  the 
disseisor  bar  only  the  husband's  interest  by  the  marital  right  so 
tliat  there  was  no  adverse  possession  against  the  wife  or  her  heirs 
until  the  death  of  the  husband  or  the  wife? 

On  this  question  courts  and  judges  have  differed. 

The  Massachusetts  Supreme  Court  at  an  early  date  held  that 
it  was  only  by  reason  of  the  peculiar  legal  relation  of  husband 
and  wife  that  the  actual  seisin  of  the  wife's  fee  was  in  the  hus- 
band during  the  joint  lives  of  husband  and  wife,  thus  giving  the 
husband  what  was  technically  an  estate  for  the  joint  lives  of 
husband  and  wife;  that  in  fact  the  unity  of  husband  and  wife 

ns  Ohio   Oil    Company   v.    Daughe-  i  Higgins  v.  Crosby,  40  111.   260 ; 

tee,   240    111.    361;    Dees   v.    Gheuv-       Mettler  v.  Miller,  129  111.  6:50. 
ronts,  240  111.  486 ;  4  111.  Law  Rev. 
429. 

422 


Ch.XV]  reversions  and  remainders  f§388 

caused  both  together,  and  the  husband  as  the  representative  of 
both,  to  have  in  their  legal  unity  the  entire  fee  and  the  seisin  in 
fee;  that  while  the  husband  had  actual  seisin  by  the  marital 
right,  there  was  in  fact  no  separation  of  estates,  but  that  the 
fee  was  in  possession  of  the  husband  and  wife.  Hence,  when  the 
statute  l)egan  to  run  against  the  husband,  it  ran  against  the 
wife's  interest  as  well,  and  upon  the  completion  of  the  twenty 
years  refpiired  by  the  statute  and  the  ten  years  in  addition  after 
the  coverture  was  ended,  the  wife's  interest  was  barred.^  This 
was  consistent  witli  the  statute  and  its  assumption  that  during 
coverture  there  miglit  be  adverse  possession  against  a  wife  who 
had  a  fee  and  tliat  she  was  permitted  the  period  of  ten  years 
after  the  coverture  ended  in  which  to  bring  her  action. 

Other  courts,  however  (including  our  Supreme  Court),  have 
treated  the  wife  as  having  an  actual  reversion  in  fee,  subject  to 
the  husband's  estate  for  life  by  the  marital  right,  so  that  there 
could  be  no  adverse  possession  whatever  against  the  wife  during 
coverture,  and,  therefore,  upon  the  termination  of  the  coverture 
the  statute  would  first  begin  to  run  against  the  wife  or  the  wife's 
heirs  and  they  would  be  entitled  to  the  full  period  of  twenty 
years,  altiiough  that  might  mean  that  the  wufe  or  her  heirs  were 
entitled  to  the  running  of  the  full  period  of  the  statute  after  the 
husband  had  during  his  life  been  disseised  for  forty  years.-''  In 
Coiniecticut  the  opinions  of  four  judges  were  equally  divided  as 
to  which  view  was  correct.^ 

§  388.  Effect  of  the  Illinois  Married  Woman's  separate 
property  act  of  1861 — Castner  v.  Walrod:  '■  The  first  Illinois 
:\Iarri(Hl  Woman's  Act  of  1861  operated  to  prevent  the  creation 
of  any  estate  by  the  marital  right  in  a  husband  for  the  joint  lives 
of  the  hus])and  and  wife  in  the  wife's  fee.  This  act,  however, 
had  no  general  retroactive  effect.  A  husband's  vested  estate  by 
the  marital  right  which  existed  at  the  date  when  the  act  took 
effect  continued.    If,  therefore,  the  statute  of  limitations  had  run 

sMelvin    v.    Locks    &    Canals,    16  Gregg  r.  Tesson,  1  Blac-k  (66  U.  S.) 

Pick,     (Mass.)     161;     Kittridge    v.  150;     Kibbie    v.    Williams,    58    111. 

Locks   &   Canals,   17  Pick.    (Mass.)  30,    semble;    Thompson's    Heirs    v. 

246.  Green,  4  Ohio  St.  216. 

3  Foster    t-.    Marshall,    22    N.    H.  ■»  Watson  v.  Watson,  10  Conn.  77. 

491;    Shortall    r.    Hinckley,    31    111.  ^.83  111.171. 
219;    Jacobs    v.    Rice,    33    111.   370; 

423 


§  388]  FUTURE   INTERESTS  [Ch.  XV 

against  the  husband's  life  estate  by  the  marital  right  before  the 
act  of  1861  and  then  the  possession  of  the  disseisor  had  continued 
after  the  act  of  1861  for  the  statutory  period  while  the  husband 
and  wife  still  lived,  it  might  with  great  force  have  been  urged 
that,  in  accordance  with  the  rulings  already  made  by  our  Su- 
preme Court/'  the  adverse  holder  had  secured  an  estate  good 
against  all  the  world  during  the  joint  lives  of  the  husband  and 
wife,  and  that  there  could,  according  to  the  general  rule,  be  no 
adverse  possession  against  the  wife  or  her  heirs  until  the  death 
of  the  husband  or  the  wife,  and  then  the  full  statutory  period 
must  run  against  the  reversion.  Our  Supreme  Court,  however, 
did  not  adopt  this  view.  Instead  it  gave  a  mysterious  effect  to 
the  Married  Woman's  Act  of  1861  to  reach  the  result  adopted 
by  the  Massachusetts  court  prior  to  the  time  of  any  married 
women's  legislation,  that  the  disseisin  of  the  husband  was  the 
disseisin  of  the  husband  and  wife,  and  the  statute  began  to  run 
against  both  at  the  same  time. 

The  first  step  toward  this  result  was  taken  in  Castner  v.  Wal- 
rod.  In  that  case  Hall  agreed  to  convey  to  Haskins  in  1849. 
Raskins'  son  assigned  the  bond  for  the  deed  fraudulently  in  the 
name  of  his  father  to  Walrod.  Haskins,  the  father,  died  in  1850. 
Walrod  presented  the  bond  to  Hall,  secured  a  deed  and  took 
possession.  In  1869  complainants,  who  were  the  children  of 
Haskins,  filed  a  bill  to  obtain  a  conveyance  pursuant  to  the  bond. 
They  were  really  attempting  to  enforce  a  constructive  trust 
against  Walrod  who  had  the  legal  title.  It  was  held  that  the 
complainants  were  barred  by  laches.  Their  claim  was  purely 
equitable  and  the  doctrine  of  laches  in  equity  and  not  the  statute 
of  limitations  applied.  It  was  insisted  on  behalf  of  three  of  the 
complainants  that  when  Walrod  took  possession  of  the  land  they 
were  married  women,  and  still  were,  and  that  this  fact  placed 
them  under  a  disability  which  the  statute  of  limitations  recog- 
nized and  which  equity  would  also  recognize.  That  was  met  by 
the  ruling  of  the  court  that  since  the  Married  Woman's  Act  of 
1861  there  was  no*  longer  any  disability  of  coverture  under  the 
limitation  act  '^  and  eciuity  would  not  recognize  any  such  excuse 

0  Ante,  §  .385.  lier  property  was  concerned,  the  con- 
T  The  court  said    (p.   178):     "If,  elusion   is   irresistible   that  the   sav- 
then,  under  the  act  of  1861,  a  feme  ing  clause  in  favor  of  married  worn- 
covert  became  unmarried,  so  far  as  en,  in  the  limitation  law,  was  abro- 

424 


Ch.  XVJ  KKVERSIONS    AND    REMAINDERS  f  §  '388 

for  delay.  While  not  so  precisely  stated,  the  court  recognized 
another  argument  on  the  part  of  the  complainants  who  were 
married  when  Walrod  took  possession.  It  was  this:  The 
equitable  interests  in  the  fees  of  the  married  women  were  merely 
reversionary,  since  their  husbands  had  the  present  interest  in 
possession  by  the  marital  right  wiiich  accrued  before  1861  and 
was  not  disturbed  by  that  act.  The  liusbands  were  still  living. 
Hence,  it  was  contended  the  wives  could  not  be  guilty  of  laches 
since  they  had  no  power  to  act.  There  are  a  number  of  sufficient 
answers  to  this  position  which  the  court  did  not  formulate.  For 
instance,  the  wife's  interest  was  only  an  equity  to  secure  a  legal 
title.  The  husband's  estate  by  the  marital  right  did  not  attach 
until  the  wife  got  in  the  legal  title  and  became  legally  seized  in 
fee.  Hence,  the  husband  and  wife  together  had  a  right  to  sue 
for  conveyance.  The  delay,  therefore,  was  the  delay  of  both 
and  dated  from  the  year  1850.  Another  answer  might  have 
been  that  since  the  husband  and  wife  did  not  get  in  the  legal 
title  for  the  wife  before  1861  the  right  of  action  to  secure  it 
became  by  the  act  of  1861  the  wife's  separate  property  and  she 
was  barred  by  laches  from  asserting  it  by  reason  of  her  delay 
since  1861,  especially  in  view  of  the  fact  that  she  knew  of  all 
the  circumstances  since  the  year  1850.  Another  answer  to  the 
married  women's  position  was  that  it  was  self-destructive.  If 
the  husbands  had  an  estate  for  life  by  the  marital  right  it  still 
existed.  The  husbands  were  barred  by  laches,  but  the  wives' 
right  to  possession  had  not  yet  accrued,  so  that  the  complainants' 
ease  would  fail.  The  court,  however,  passed  by  these  answers 
to  the  position  of  the  married  women  and  adopted  another.  It 
assumed  for  the  sake  of  argument  that  the  husband  had  a  life 
estate  by  the  marital  right  and  that  the  wife's  interest  was 
reversionary.  It  then  proceeded  to  hold  that  since  the  hus- 
band's estate  by  the  marital  right  was  barred  before  1861  by  the 
running  of  the  statute,  the  continued  possession  of  the  disseisor 
after  the  act  of  1861  for  the  statutory  period  barred  the  wife.^ 

gated,   as  the    two   acts   are   so   ut-  iite    of   limitations    was    concerned: 

terly  inconsistent  that  they  can  not  Enos   v.  Buckley,   94   111.   458,   462; 

stand  tog:ether. "  Miller   r.  Pence,   1.32  111.   149,  158. 

Subse(]uent  decisions  have  referred  "The  court  said   (p.  180):    "The 

to  Castner  r.  Walrod  as  holding  that  possession    of    the    defendant    com- 

after    1861   the   disability  of  cover-  menced   as   early   as   1850,   and   the 

ture  was  removed,  so  far  as  the  stat-  statute  of  limitations  then  began  to 

425 


§  388]  FUTURE   INTERESTS  [Ch.  XV 

The  court  tlius  in  eifect  held  that  where  a  husband  had  a  life 
estate  by  the  marital  right  in  the  wife's  fee  before  the  Married 
Woman's  Act,  and  the  husband's  life  estate  was  terminated  by 
adverse  possession  before  that  statute,  the  Married  Woman's 
Act  operated  to  give  the  wife  an  immediate  right  to  possession 
of  her  separate  estate  as  if  she  were  a  feme  sole,  and  the  con- 
tinued possession  of  the  disseisor  became  adverse  to  the  wife  and 
after  the  statutory  period  had  run  Avas  barred,  though  she  and 
her  husband  were  still  alive.^  In  short,  while  the  act  of  1861 
had  no  retroactive  effect  to  divest  what  was  already  vested  in 
the  husband,  yet  when  the  husband's  estate  for  life  by  the  mari- 
tal right  had  already  been  divested  by  the  statute  of  limitations 
before  the  act  of  1861,  that  act  became  effective  to  give  the  wife 
a  right  to  possession  at  once.  This  means  that  the  act  of  1861 
was  given  a  retroactive  effect  so  far  as  the  rights  of  the  adverse 
holder  (as  one  who  had  acquired  an  estate  good  against  all  the 
world  during  the  joint  lives  of  the  husband  and  wife)  were 
concerned.  The  estate  for  the  joint  lives  of  the  husband  and 
wife,  which  the  disseisor  would,  by  the  operation  of  the  u,sual 
rule  already  noted,  secure  by  the  operation  of  the  statute,  came 
to  an  end  by  the  act  of  1861,  and  the  wife  had  an  immediate 
right  to  possession.  To  this  extent  the  act  of  1861  operated 
retroactively.     Whether  this  proposition  of  Castner  v.  Walrod 

run   against    the   life    estate   in   the  mitted  the  defendant  to  remain  upon 

husbands  of  the  complainants.     This  the  land,  undisturbed,  for  more  than 

life    estate    was,    therefore,    barred  seven  years  after  the  passage  of  the 

prior  to  the  passage  of  the  act  of  act  of  1861." 

1861,  and  when  barred,  it  was,  for  »  Such  is  the  statement  of  the 
all  practical  purposes,  gone,  and  the  holding  in  Castner  v.  Walrod,  which 
husbands,  in  effect,  no  longer  had  was  made  by  the  court  in  Mettler  v. 
any  interest  in  the  premises.  Miller,  129  111.  630,  643,  644,  where 
*  *  *  When,  therefore,  the  life  the  court  said :  "  In  Castner  v.  Wal- 
estate  which  the  husbands  had  ac-  rod  it  was  held,  that  when  the  es- 
quired by  virtue  of  the  marriage,  tate  which  the  husband  had  acquired 
was  terminated  by  operation  of  the  by  virtue  of  the  marriage,  was  ter- 
statute  of  limitations,  and  the  act  minated  by  operation  of  the  statute 
of  1861  removed  the  disability  of  of  limitations,  and  the  act  of  1861 
coverture  of  the  complainants,  they  removed  the  disability  of  coverture, 
were  then  .bound  to  bring  their  ae-  the  wife  was  bound  to  bring  action 
tion  within  seven  years,  or  their  within  seven  years,  or  her  right  and 
right  to  title  would  be  barred.  This  title  would  be  barred." 
complainants  failed  to  do,  but  per- 

426 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§389 

is  right  or  wrong  is  perliaps  of  little  if  any  importance  today  so 
long  as  its  very  limited  application  is  observed.  It  only  causes 
difficulty  when  counsel  attempt  to  generalize  from  it  that  any 
possession  will  become  adverse  to  any  reinainderman  or  rever- 
sioner as  soon  a-s  any  life  estate  is  extinguished  by  the  running 
of  the  statute — a  proposition  which,  as  already  noticed,  might 
have  been  the  result  of  the  authorities,  ])ut  as  a  matter  of  fact 
has  not  been  adoi)ted  by  the  courts."^ 

i$  389.  Enos  v.  Buckley:  i'  The  dictum  of  this  case  goes 
the  full  length  of  holding  that  after  the  act  of  1861  a  disseisor 
of  a  husband  having  an  estate  by  the  marital  right  in  the  wife's 
fee  is  a  disseisor  of  the  wife  also,  and,  when  the  statutory  period 
of  adverse  possession  has  run,  the  interests  of  both  are  barred. 
Thus,  in  eflt'ect,  the  act  of  1861  is  given  a  mysterious  operation 
to  bring  the  court  to  the  rule  of  the  Massachusetts  cases  which 
held  that,  prior  to  any  married  women's  legislation,  a  disseisin 
of  the  husband  who  had  an  estate  by  the  marital  right  was  at  the 
same  time  a  disseisin  of  the  wife.^^ 

In  Enos  v.  Buckley,  the  husband  and  wife  who  had  a  record 
title  brought  ejectment  in  1878.  The  defense  was  adverse  pos- 
session for  the  statutory  period  from  1865  to  1872.  When  the 
adverse  possession  began  in  1865,  the  wife  who  had  the  fee  was 
married  to  her  present  husband,  who  then  had  an  estate  by  the 
marital  right  in  the  wife's  fee  which  arose  prior  to  the  act  of 
1861  and  was  not  disturbed  by  that  act.  A  judgment  for  the 
defendant  was  very  properly  affirmed.  The  husband's  estate 
for  life  was  clearly  barred  while  the  wife's  reversion  was  not, 
but  the  husband  and  wife  being  still  alive  the  wife  had  no  right 
to  possession  when  the  ejectment  was  brought.  The  court,  how- 
ever, appears  to  hold  that  since  the  act  of  1861  the  disability  of 
married  women  under  the  limitations  act  had  been  entirely 
removed,  and  that  this  had  the  effect  of  causing  the  statute 
to  run  against  a  married  woman  as  if  she  were  a  feme  sole  and 
regardless  of  whether  the  property  was  acquired  by  the  mai-ried 
woman  while  covert  before  or  since  the  act  of  1861. '''* 

^f' Ante,  §  385.  cision  in  the  ease  of  Castner  et  al.  r. 

1194  111.458.  Walrod,   that    since  the   passage   of 

i-^Ante,  §387.  the  Married  Woman's  Act  of  1861, 

13  The    court    saiil     (page    462)  :  the  saving  clause  in  favor  of  married 

"We    regard,    tlieii,    under    tlie    de-  women  in  this  limitation  law  has  no 

427 


§  389]  FUTURE    INTERESTS  [Ch.  XV 

So  long  as  Enos  v.  Buckley  is  recognized  as  applying  only 
where  a  husband,  who  is  seized  of  an  estate  b}^  the  marital  right 
in  a  wife 's  fee  as  at  common  law,  is  dispossessed  and  the  adverse 
holding  continues  for  the  statutory  period  after  the  act  of  1861, 
it  is  a  matter  of  small  importance  whether  it  is  sound  or  not. 
The  danger  of  having  the  case  in  the  supreme  court  reports  is 
that  counsel  always,  and  even  the  court  itself  sometimes,^* 
deduces  from  it  the  general  proposition  that  any  adverse  pos- 
session against  any  life  tenant  is  at  once  an  adverse  possession 
against  any  reversioner  or  vested  remainderman — a  proposition 
which  it  ma}'  safely  be  said  no  court  has  recognized  and  which  all 
decisions,  particularly  those  already  noted,^^  holding  that  no 
adverse  possession  begins  to  run  against  a  reversioner  or  re- 
mainderman until  the  actual  death  of  the  original  tenant  for 
life,  no  matter  how  long  the  original  life  tenant  may  have  been 
disseised,  repudiate.  Furthermore,  it  should  not  be  overlooked 
that  if  any  such  general  rule  were  announced  and  applied,  it 
would  be  void  under  the  Fourteenth  Amendment  of  the  Federal 
Constitution  as  a  deprivation  of  the  remainderman's  property 
without  due  process  of  law,  and  the  decision  of  a  state  Supreme 
Court  should  be  reversed  by  the  United  States  Supreme  Court 
on  that  ground.i^    A  remainderman  who  has  no  right  to  sue  for 

force,  and  that  the  statute  since  that  diced  by  the  non-assertion  of  a  right 

time     applies     against     a     married  that   does  not   exist. ' ')  ;    Mettler  v. 

woman    equally    as    against   an    un-  Miller,  129  111.  630,  642,  643  ("All 

married   woman,   without   regard   to  statutes  of  limitation  are  based  on 

whether  the  property  of  the  married  the  theory  of  laches,  and  no  laches 

woman   be   strictly    in    legal    under-  can  be  imputed  to  one  who  has  no 

standing,  before  the  passage  of  the  remedy   or   right   of   action,   and   to 

act,    her   separate    property   or   not,  hold   the    bar   of    the    statute   could 

and  without  regard  to  the   time  of  run  against  the  title  of  a  person  so 

its  acquisition,  whether  since  or  be-  circumstanced,   would   be   subversive 

fore  the  passage  of  the  act,  whether  of  justice,  and  would  be  to  deprive 

during  or  before  coverture. ' '  such  person  of  his  estate  without  his 

14  Nelson    v.    Davidson,    160    111.  day  in  court."). 
254;    post,   §391;    Field  v.   Peeples,  It    should    be    observed   also    that 

180  111.  376;  post,  §  390.  the  Illinois  seven-year  statute  of  lim- 

^^  Ante,  §385.  itations  as  to  vacant  lands  was  first 

16  Higgins  V.  Crosby,  40  111.   260,  held    unconstitutional    as    a    taking 

("It  would  be  unprecedented  to  hold  of  property  without  due  process  of 

that   a    right   of   entry   was   barred  law  because  there  was  no  sufficient 

where   such   a  right    had   never  ac-  substitute    in    the    act    for    adverse 

crued.      A    party    cannot   be   preju-  possession:  Harding  v.  Butts,  18  lU. 

428 


Cll.  XVJ  IlKVEKSIONS   AND    KEMAINUEKS  [jj^)!)*) 

possession  till  llic  death  of  Iho  original  tenant  for  life  cannot 
constitutionally  he  harred  hy  any  possession  of  a  disseisor  during 
the  life  of  tiic  original  tenant  for  life.  The  fact  is,  however,  that 
in  the  dictd  of  .\clson  v.  Davidson  ''  we  find  the  court  using 
Enos  V.  lUicklrij  for  the  genera!  proposition  that  wlien  the 
statute  hegins  to  run  against  any  life  tenant  it  begins  to  run 
against  the  reniaindernian.  In  Field  r.  Peeples,^^  our  Supreme 
Court  seems  to  use  Eiios  v.  liuckley  for  the  proposition  that 
when  the  statute  has  run  against  any  life  tenant  it  also  runs 
against  any  i-eversioner  or  reniaindei-man  under  any  disability 
such  as  infancy,  so  that  the  remaindernum  must  within  the  addi- 
tioiuil  time  allowed  by  the  statute  sue  for  possession  although 
the  origiiuil  life  tenant  still  lives.  It  is  important,  therefore, 
that  these  two  cases  be  carefully  analyzed,  and  the  dicta  of  the 
coui't,  which  are  derived  from  a  misconception  of  Enos  v.  Buck- 
leif  and  M'hich  cannot  be  supported,  be  separated  as  far  as  pos- 
sible from  the  actual  decision  in  each  ease. 

;<  390.  (2)  Where  the  disseisor  of  the  life  tenant  enters 
under  a  void  guardian's  sale  of  the  reversioner's  interest — Nel- 
son v.  Davidson:  '•'  In  this  case  the  mother  died  in  1845,  leav- 
ing her  husl)and  tenant  for  life  by  curtesy,  and  Mary  her  heir 
at  law,  the  reversioner.  In  1852,  the  father  as  guardian  for 
Mary  purported  to  sell  at  guardian's  sale  the  minor's  interest. 
In  1892  the  father  died.  Mary  brought  ejectment  in  1896.  The 
defense  was  a  regular  chain  of  title  from  the  purchaser  at  the 
guardian's  sale  and  possession,  payment  of  taxes  under  color 
of  title  during  the  ten  years  immediately  preceding  1892.  Judg- 
ment for  the  defendant  was  aflfirmed.  The  court  first  held  that 
the  objections  to  the  guardian's  sale  were  trivial  and  not  well 
founded.  That  disposed  of  the  case,  for  the  guai'dian's  sale 
transferred  the  remainder  and  the  life  estate  had  been  barred 
by  the  statute  of  liniitaticuis  as  well  as  terminated  by  the  death 
of  the  life  teiuint.    The  court,  however,  went  on  to  deal  with  the 

503.    The  act  was  only  held  valid  as  Marsh,  19  111.  376;   Dunlap  v.  Tay- 

a  limitation  at-t  by   reading   into   it  lor,  2.3  111.  .387;  McCajjg  r.  Heacock, 

the   requirement   that    the   claimant,  ;!4  111.  476;  42  111.  15.3. 

after  seven  years'  payment  of  taxes  ''160  111.  2.54;  post,  §  390. 

under  color  of  title,  must  enter  and  i"*  180  111.  376;  post,  §  391. 

take  possession  in  order  to  complete  '!•  160  111.  254. 
the  bar  of  the  statute:   Newland  p. 

429 


§  390]  FUTURE   INTERESTS  [Ch.  XV 

case  on  the  supposition  that  the  guardian's  sale  was  void  for 
irregularity  and  reached  the  conclusion  that  even  in  that  event 
the  defendant  was  entitled  to  judgment.  The  problem  of  the 
case- is:  how  can  this  dictum  be  supported? 

Can  it  be  sustained  on  the  ground  that  the  void  guardian's 
sale  was  made  valid  by  the  laches,  estoppel  and  affirmance  of  the 
minor  ?  20  The  guardian 's  sale  if  void  was  so,  not  on  the  ground 
that  the  minor's  interest  was  contingent  and  therefore  not  trans- 
ferable, but  because  of  irregularities  in  the  proceedings  to  sell 
an  interest,  which,  however,  was  alienable  by  guardian's  sale. 
It  is  true  also  that  the  reversioner  came  of  age  in  1863,  thirty 
years  before  bringing  suit.  It  must  be  very  doubtful,  however, 
if  the  reversioner  could  have  filed  any  bill  to  remove  the  guar- 
dian's deed  as  a  cloud,  for  she  was  not  in  possession  and  the 
property  was  not  vacant.  Nor  was  there  any  evidence  that  the 
minor  ever  received  any  part  of  the  purchase  price  paid  at  the 
guardian's  sale  after  she  came  of  age.  The  case  presented,  there- 
fore, is  not,  it  is  submitted,  sufficient  to  bar  the  complainants 
from  attacking  the  guardian's  sale  if  it  were  actually  void.^i 

What  the  court  appeared  to  go  upon  was  a  generalization  from 
the  dictum  of  Enos  v.  Buckley — namely,  that  an  adverse  posses- 
sion against  any  life  tenant  is  at  the  same  time  an  adverse  pos- 
session against  the  reversioner.  Such  a  generalization  cannot 
be  supported.  It  cannot  properly  be  extracted  from  Enos  v. 
Buckley,  for  that  case  dealt  only  with  the  effect  since  1861  of 
an  adverse  possession  against  a  husband  holding  an  estate  by 
the  marital  right  in  the  fee  of  his  wife  to  bar  the  right  of  the 
wife.  It  was  merely  a  reversion  to  the  Massachusetts  common 
law  rule  that  a  disseisin  of  the  husband  who  had  only  an  estate 
by  the  marital  right  in  his  wife's  fee  was  at  the  same  time  a 

20  See  Tracy  v.  Eoberts,  88  Me.  was  void  for  irregularity.  But  in 
310'  Price  v.  Winter,  15  Fla.  66,  that  ease  the  purchase  money  had 
121-  Penn  and  Wife  v.  Heisey,  19  been  paid  to  the  administrator  and 
111.  295;  Walker  v.  Mulvean,  76  111.  used  for  the  payment  of  debts.  The 
18,  20;  Byars  v.  Si)eneer,  101  111.  reversioner  made  no  offer  to  repay 
429    436.  it  and  he  could  have  filed  a  bill  to 

21  In  Woodstock  Iron  Co.  v.  Full-  remove  the  conveyance  as  a  cloud 
enwider,  87  Ala.  584,  the  reversioner  during  the  continuance  of  the  life 
was  barred  by  laches,  estoppel  and  estate.  Under  these  circumstances 
aflBrmance  from  attacking  an  admin-  he  allowed  twenty  years  to  elapse 
istrator  's  sale  of  his  interest  which  before  taking  action. 

430 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§391 

disseisin  of  the  wife.  In  ydson  c.  IJaridson,  when  the  adverse 
possession  began,  the  life  tenant  was  a  widower  who  had  an 
actual  estate  for  life  by  eurtesy.  The  reversioner  was  the  heir 
of  the  wife.  Under  tliese  circumstances,  the  dictum  of  Enos  v. 
Buckley  could  have-  no  application.  The  dictum  of  Nelson  v. 
Davidson  runs  counter  to  the  general  rub'  which  must  be  re- 
garded as  established  in  this  state,  not  only  l)y  express  decision  ^^ 
but  also  by  statute,--'  that  an  adverse  possession  against  a  life 
tenant  not  only  does  not  become  adverse  to  the  remainderman 
when  the  statute  has  run  against  the  life  estate,  but  does  not 
become  adverse  to  the  reversioner  until  the  actual  termination 
of  the  life  or  lives  which  measure  the  duration  of  the  original 
estate  for  life.  The  dictum  of  Nelson  v.  Davidson,  in  fact,  ap- 
proves a  rule  which  if  actually  applied  would  amount  to  a  taking 
of  the  reversioner's  property  without  due  process  of  law. 

^5  391.  Field  v.  Peeples:  -^  The  Supreme  Court  in  this  case 
appears  to  approve  the  proposition  attributed  by  it  to  Enos  v. 
Buckley  and  Nelson  v.  Davidson,  that  when  adverse  possession 
commences  against  any  life  tenant  it  immediately  begins  to  run 
against  an.v  remainderman  under  any  disability  such  as  infancy, 
so  that  when  the  statute  has  run  against  the  life  tenant  before 
the  disability  is  removed,  the  remainderman  must  sue  within 
the  additional  time  allowed  by  the  statute  after  the  disability  is 
removed  or  be  entirely  barred.  By  a  will  which  took  effect  in 
1871,  Ellen  became  life  tenant  with  a  vested  remainder  in  her 
children  who  were  then  born.  In  1894,  while  the  life  tenant  was 
still  alive,  but  after  she  had  conveyed  in  1898  all  her  interest  to 
her  children,  the  children  brought  ejectment  against  the  de- 
fendant in  possession.  A  judgment  was  entered  for  the  plaintiffs, 
the  two  children,  Clarence  and  Cornelia.    In  the  Supreme  Court 

--Ante,  §  .T85.  iiiterniodiato     or     precedent     estate 

23  Section    ?,,    subsection    third    of  would  have  expired  by  its  own  linii- 

the  Limitation   Act   of   1872    (R.  S.  tation,  notwithstanding  any  forfeit- 

1874,  chapter  83,  section  3,  subsec-  ure  thereof  for  which  he  might  have 

tion  third):     "When   there   is   such  entered  at  an  earlier  time. " 

an   intermediate   estate,    and    in  all  This  section  has  been  referred  to 

other   cases   when   the   party   claims  and    declared    to    govern    the    other 

by  force  of  any  remainder  or  rever-  sections  of  the  Limitation  Act.    See 

sion,  his  right,  so  far  as  it  is  affected  Turner  v.  Hause,  199  111.  464;  Wei- 

by  the  limitation   herein    prescrilied,  gel  r.  Green,  218  111.  227. 

shall  be  deemed  to  accrue  when  tlie  -<  180  111.  376. 

431 


§391] 


FUTURE   INTERESTS 


[Ch.  XV 


the  defeiidauts  successfully  contended  that  all  the  interest  of 
Clarence  had  passed  to  them  by  a  guardian's  sale  of  1873.  Hence, 
the  judgment  was  reversed.  That  really  disposed  of  the  case. 
But  the  court,  in  order  apparently  to  settle  further  questions, 
intimated  that  the  other  child,  Cornelia,  not  having  had  her 
interest  sold  by  the  guardian  would  be  entitled  to  judgment  for 
her  share.  It  was  this  suggestion  of  the  court  that  the  defendants 
sought  to  combat.  They  relied  upon  the  fact  that  they  had  had 
adverse  possession  against  the  life  tenant  so  that  the  life  estate 
was  barred.  As  a  result  of  this  they  claimed  a  right  to  possession 
good  as  against  all  the  world  during  the  life  of  the  original  life 
tenant  who  was  still  living.  There  was  evidence  of  possession 
and  payment  of  taxes  from  1883  to  1894  and  the  court  seems  to 
have  assumed  that  there  was  also  color  of  title.  Nevertheless, 
the  defendants  failed  in  this  defense  because  no  issue  was  pre- 
sented by  the  pleadings  which  would  entitle  them  to  claim  an 
estate  for  the  life  of  the  original  life  tenant  by  the  statute  of 
limitations.--^    The  defendant  no  doubt  claimed  the  fee  under  the 


25  The  court  said  (p.  383):  "The 
fact  that  the  statute  of  limitations 
might  have  been  successfully  inter- 
posed as  a  defense  had  the  action 
been  brought  by  Ellen  Pool  Peeples, 
has  no  special  bearing  on  this  case. 
Here,  appellees  are  claiming  to  re- 
cover as  owners  of  the  fee,  and  it  is 
not  claimed,  as  we  understand  the 
argument,  that  they  are  barred  by 
the  statute  of  limitations."  On  the 
rehearing,  the  court  said  (p.  389)  : 
' '  The  right  of  possession  under  color 
of  title  to  the  life  estate  is  not  in- 
volved in  the  case.  Plaintiffs  below, 
by  their  declaration,  claimed  the 
premises  in  fee,  and  the  defendant, 
both  by  virtue  of  the  guardian 's 
sale  and  deed  and  possession  under 
that  deed  as  claim  and  color  of  title 
and  payment  of  taxes  for  more  than 
seven  years,  also  claimed  the  title  in 
fee  simple.  He  does  not  claim  color 
of  title  to  the  life  estate,  and  coun- 
sel are  therefore  mistaken  in  the 
assertion  that  the  opinion  heretofore 


filed  overrules  cases  cited,  to  the  ef- 
fect that  when  the  bar  of  the  stat- 
ute is  complete  the  holder  of  the  title 
by  limitation  may  assert  it  against 
all  others;  that  his  right  of  posses- 
sion is  as  perfect  as  though  he  were 
invested  with  a  paramount  title,  and 
that  his  title  is  as  available  for  at- 
tack as  defense.  The  petition  and 
argument  in  support  of  it,  assume  a 
state  of  case  not  shown  by  this 
record.  If  appellant  had  set  up  and 
shown  color  of  title  to  the  life  estate, 
and  relied  upon  that  title  under  the 
statute  of  limitations,  then  the  posi- 
tion here  contended  for  would  have 
been  tenable.  In  that  case  the  re- 
maindermen would  undoubtedly  have 
been  postponed  in  their  right  of  ac- 
tion until  after  the  death  of  the  life 
tenant,  but  under  the  issues  in  this 
case  they  were  bound  to  bring  their 
action  within  the  time  limited  by 
the  statute  after  they  became  of  age, 
and  if  they  had  delayed  their  action 
until  the  death  of  their  mother,  and 


432 


ClI.  XV]  RKVERSIONS    AND    REMAINDERS  [§391 

statute  of  limitations.  Tliis  would  he  an  affirmative  defense.  If 
the  defendant  wcie  successful  in  maintaining  it,  the  plaintiff 
would  have  been  ad.iudicated  out  of  the  fee.  Hence,  the  issue 
raised  was  not  whether  the  defeiulant  had  an  estate  for  the  life 
of  the  original  life  tenant  by  the  statute,  hut  whether  the  fee  of 
the  remaindci-nuin  iuul  been  barred  by  the  statute,  so  that  the 
defendant  would  have  the  fee  as  against  the  remainderman. 
Whether  the  couit  was  right  or  wrong  in  so  anal^'sing  the  precise 
issue  is  not  material  to  the  present  discussion.  That  is  the  posi- 
tion which  it  took  and  that  disposed  of  the  case. 

As  a  parting  shot,  however,  to  the  defendants  on  the  rehearing, 
the  court  called  attention  to  the  decisions  in  Enos  v.  Buckley  and 
Xelson  V.  Davidson,  and  said  that  the  court  in  those  eases  held, 
"that  possession  tof  the  statutory  period,  under  claim  of  title, 
to  an  estate  in  fee,  sufficient  to  constitute  color  of  title,  with 
payment  of  taxes  for  the  same  period,  would  bar  the  estate  in 
i-enuiinder,  notwithstanding  the  existence  of  the  outstanding  life 
estate,  where  the  remainderman  claiming  title  was  under  no 
disability."  The  court  then  concludes  that  in  view  of  such 
holdings  the  plaintiff's  were  bound  to  bring  their  action  within 
two  years  after  th(\v  came  of  age,  and  therefore  could  not  wait 
until  the  death  of  the  original  life  tenant.-'"'  This  is  a  plain 
intimation  that  when  a  remainderman  is  under  any  di.sability, 
whether  of  covei'ture  or  infancy,  the  statute  of  limitations  begins 
to  run  against  him  as  soon  as  it  commences  to  run  against  the 
life  tenant,  but  that  the  remainderman  under  a  disability  of 
infancy  has  the  additional  time  after  that  disability  is  removed 
within  which  to  sue,  and  must  sue  within  that  time  or  be  forever 
barred.  This  dictum  of  the  court  again  overlooks  the  fact  that 
when  a  remainderman  is  under  no  disability,  the  statute  does  not 
begin  to  run  against  him  until  the  original  life  tenant  actually 
dies,  and  the  fact  that  the  reversioner  is  under  a  disability  does 
not  put  him  in  any  worse  position,  or  any  better  for  that  matter. 
The  dicttim  of  the  court  in  FirJd  v.  PcepJcs,  like  the  dictum  of 

that   event   had  oeeuired   more  than  their  action  within   two  years  aft*r 

two  years  after  they  became  of  age,  they    became    of    age,    and,    at    the 

they  would  have  been  barred."  same   time,  that   they  had   no  right 

='■'  The      court      said      (p.      390)  :  to   do    so    until    after   death    of   the 

"*     *     *     it   cannot    be    held    that  life  tenant. " 
jilaintifFs  below  were  bound  to  briuj^ 

Kales  Fut.  Int. — 28  433 


§  392]  FUTURE   INTERESTS  [Ch,  XV 

the  court  in  .\rlso>i  i\  Davidson,  fails  to  oliscrve  that  tlie  dictum 
of  Enos  V.  Buckley  applied  only  where  a  hnsband  holding  by  the 
martial  right  in  his  wife's  fee  was  disseised  after  the  act  of 
1861.  The  dictum  of  Field  v.  Peeples,  like  that  of  Nelson  v. 
Davidson,  runs  eonnter  to  the  many  cases  already  noted,-'  which 
support  the  general  rule  that  revei-sioners  and  remaindermen 
have  no  right  to  possession  until  the  actual  death  of  a  life  tenant 
who  has  been  disseised,  and  whose  estate  for  life  has  been  barred 
by  the  statute. 

§  392.  Miscellaneous  problems— (1)  Suppose  the  life  estate 
is  released  to  the  vested  remainderman,  or  both  the  life  tenant 
and  the  vested  remainderman  convey  to  a  third  person:  i^up- 
pose  the  vested  remainderman  is  using  the  release  or  conveyance 
as  the  basis  of  a  merger  to  enable  him  to  secure  possession  from 
the  adverse  holder  before  the  actual  death  of  the  life  tenant.  He 
will,  of  course,  succeed  if  the  adverse  possession  has  not  yet 
barred  the  life  tenant.  If,  however,  the  statute  has  run  against 
the  life  tenant  when  the  conveyance  relied  on  to  effect  the  merger 
occurs,  there  cannot  he  a  merger  which  will  prejudice  the  adverse 
holder  whose  possession  is  protected  until  the  actual  death  of  the 
life  tenant.2^  If,  however,  when  the  conveyance  which  is  relied 
upon  to  atfect  a  merger  is  executed,  the  statute  has  not  run 
against  the  life  tenant  but  subsequently  it  does  so  before  the 
remainderman  sues  for  possession,  will  the  adverse  holder's 
possession  be  protected  for  the  life  of  the  original  life  tenant? 
This  has  been  answered  in  the  affirmative  ^^  on  the  ground  that 
the  merger  will  not  be  permitted  to  prejudice  the  situation  of  the 
adverse  holder  after  the  possessory  title  has  become  good  against 
the  life  tenant.    Perhaps  this  might  be  expressed  by  saying  that 

27  Ante,  §  385.  the  original  life  tenant  was  not  in- 

28  Moore  v.  Luce,  29  Pa.  St.  260 ;  volved.  The  moment  it  is  assumed, 
Baker  v.  Oakvvood,  12.3  N.  Y.  16;  under  the  issue  made,  that  the  life 
Jacobs  V.  Eice,  .3.3  111.  370;  Gregg  estate  might  have  continued,  the 
V.  Tesson,  1  Black   (U.  S.)   150.  court  could  with  propriety  say  that 

The  remarks  of  the  court  in  Field  the  conveyance  by  the  life  tenant  to 

V.  Peeples,  180  111.  376,  are  not  con-  the    remainderman    would    give   the 

tra,    because    the    court    there    held  remainderman  an  immediate  right  to 

that    whether    the    life    tenant    was  possession  by  the  doctrine  of  merger, 

barred  by  the  statute  so  as  to  give  20  Shortall    v.    Hinckley,    31    111. 

the    adverse   holder   an    estate    good  219;   Kibbie  v.  Williams,  58  111.  30, 

against  the  world  during  the  life  of  semhle. 

434 


ClI.XV]  REVERSIONS    AND    REMAINDERS  [§-^02 

when  the  adverse  possession  becomes  complete  to  bar  the  life 
tenant,  the  adverse  holder's  title  relates  back  to  the  beginning 
of  the  adverse  possession  and,  therefore,  as  to  him  no  merger 
lias  ever  occurred. 

Suppose  now  the  disseisor  is  using  the  attempted  merger  to 
contend  that  adverse  possession  began  against  the  remainderman 
upon  the  termination  of  the  life  estate  by  merger  and  therefore 
the  remainder  is  barred  by  the  statute,  although  the  statutory' 
period  has  not  run  since  the  death  of  the  original  life  tenant. 
Clearly  after  the  statute  has  run  against  the  life  estate  the  origi- 
nal life  tenant's  interest  is  gone  and  there  can  be  no  merger  by 
his  release  or  conve^'ance  at  that  time.-*"  If  the  release  or  con- 
veyance by  the  life  tenant  occurred  before  any  adverse  possession 
began,  clearly  a  merger  occurs  and  when  the  adverse  possession 
does  commence  there  is  no  reversioner  or  remainderman,  and  the 
statute  runs  against  the  entire  fee  at  once.^^  The  difficult  ease 
is  where  the  release  or  conveyance,  which  is  the  basis  for  the 
merger,  occurs  after  the  statute  has  begun  to  run  against  the 
life  tenant,  but  before  the  life  estate  is  barred,  and  then  the 
statute  does  run  completely  against  the  life  tenant  and  would 
have  run  against  the  remainderman  if  it  had  started  to  run 
against  the  remainder  at  the  time  of  the  alleged  merger.  It  is 
submitted  that  a  merger  which  could  not  be  used  against  the 
adverse  holder  wiiere  the  remainderman  was  seeking  possession 
could  not  be  used  for  him.  If  the  disseisor's  possession  bare  the 
life  estate  by  relation  back  so  as  to  i)revent  any  merger,  that 
will  equally  prevent  any  adverse  possession  against  the  remain- 
derman from  the  time  of  the  alleged  merger.  The  result  is  that 
when  an  alleged  merger  occurs  after  a  disseisin  of  the  life  tenant, 
the  revei*sioner  or  remainderman  can  sue  at  once  for  po.ssession, 
and  hence  the  possession  becomes  adverse  to  the  remainderman, 
l»ut  when  the  life  estate  is  bai-red,  then  the  adverse  possession 
against  the  reinaindei-man  ceases  and  does  not  begin  again  until 
the  death  of  the  life  tenant,  and  then  must  run  for  the  entire 
statutoi-y  jioriod.  However  incongruous  this  may  seem,  it  would 
appear  to  be  the  logical  and  necessary  result  of  the  taking  effect 

aoTak'Ott   v.   Draper,    61    111.    ;16;  ai  Whitaker  v.  Whitaker,  157  Mo. 

Peadro  v.  Carriker,  16,8  III.  ',70,  .142;  Boyk'm  v.  Anerum,  28  S.  C. 
580    {semhle).  486. 

435 


§  393]  FUTURE    INTERESTS  [Ch.  XV 

of  a  limitation  title  by  relation  back  to  the  time  when  the  adverse 
possession  eommeneed. 

§  393.  (2)  It  becomes  important  in  appljdng  the  statute  of 
limitations  to  determine  whether  a  life  estate  is  subject  merely 
to  a  forfeiture  for  a  breach  of  condition,  or  whether  it  comes 
to  an  end  by  express  limitation  before  the  life  tenant's  death: 
If  a  life  estate  is  subjeet  to  fort'eitnre  for  breaeli  of  an  express 
condition  snbsequent,  no  forfeiture  will  occur  until  the  one  en- 
titled to  enter  for  the  breach  elects  to  declare  the  forfeiture,  and 
in  an  appropriate  way  completes  the  forfeiture. -'^  No  possession 
can,  therefore,  become  adverse  against  the  remainderman  or 
reversioner  until  the  forfeiture  has  been  perfected.  If,  on  the 
other  hand,  a  life  estate  is  expressly  made  terminable  upon  an 
event  other  than  the  death  of  the  life  tenant — as,  for  instance, 
alienation  by  the  life  tenant — and  the  event  happens,  the  re- 
mainderman is  at  once  entitled  to  possession  and  the  possession 
of  a  disseisor  of  the  life  tenant  at  once  becomes  adverse  to  the 
remainderman,^^ 

§  394.  (3)  Suppose  the  remainderman  is  also  interested  in 
the  life  estate:  Suppose,  for  instance,  a  trustee  acquires  an 
estate  for  the  life  of  a  wife  in  trust  for  the  wife  and  her  children 
during  the  life  of  the  wife,  with  a  legal  remainder  to  the  children 
of  the  marriage.  Suppose  the  trustee  is  disseised  and  the  legal 
estate  for  life  barred  by  the  running  of  the  statute.  Is  the  usual 
rule  that  the  statute  does  not  run  against  the  remainderman 
until  the  death  of  the  original  tenant  for  life  altered  by  the 
fact  that  the  remaindermen  are  themselves  interested  in  the  life 
estate?  Clearly  not."'^  The  interests  of  the  children  are  dif- 
ferent and  separate.  In  barring  their  several  interests,  the 
statute  must  be  applied  to  each.''''  If,  however,  the  trustee  holds 
the  fee  and  conveys  that  in  breach  of  trust,  there  is  no  question 
of  the  statute  of  limitations  in  a  suit  to  enforce  the  trust  against 
the  transferee  of  the  land  conveyed.  The  legal  title  has  passed. 
The  only  question  is  whether  the  equitable  remaindermen  are 
barred  by  laches  from  recovering  the  trust  res  from  one  who 

32  Ante,   §  384.  81    Ga.   ?,m ;    Graff   v.   Rankin,   250 

33  Barnes    t-.    Gunter,    111    Minn.       Fed.   150. 

383,  3o  See     also     Mara     v.     Browne, 

34Franke  v.  Berkner,  67  Ga.  264;        [18951  2  Ch.  69, 
East   Rome    Town    Co.    v.    Cothran, 

436 


Ch.  XV]  REVEKSIONS    AND    KKMAINDERS  [§'^95 

takes  with  notice  of  tiie  trust.     It  ini{?lit  well  be  ur^'cd  that  the 
vested  equitable  remainderman  or  reversioner  had  a  rigiit  to  sue 
at  onee  to  have  the  trust  estate  restored  to  the  trustee  to  hold 
upon  the  trusts  desip^nated,  and  tliat  laches  on  the  part  of  the 
remainderman    would    commence    at   once   upon   notice   of   the 
breach  of  trust  and  the  removal  of  any  disability,  such  as  in- 
fancy.   The  same  might  be  true  even  if  the  equitable  remainder 
were  contingent  on  the  remainderman  surviving  the  equitable 
life  tenant.     If,  however,  we  add  the  fact  that  the  equitable 
remaindermen,  whether  having  a  vested  or  contingent  interest, 
also  have  a  present  equitable  interest  in  the  equitable  life  estate, 
there  can  be  no  donbt  of  their  right  to  sue  to  have  the  trust  estate 
which  has  been  transferred  in  breach  of  trust  tnrned  back  to 
the  trustee  for  the  purposes  of  the  trust — and  not  only  for  the 
purposes  of  the   present   equitable   interests  but   to  serve   the 
future  equitable  interests  as  well.    In  such  a  case  then,  the  period 
of  laches  would  commence  to  run  from  the  knowledge  of  the 
breach  and  the  removal  of  any  disability. •''•^' 

Topic  3. 

Where  the  Remainder  Is  Contingent. 

§  395.  The  statute  cannot  begin  to  run  against  the  re- 
mainderman till  the  event  happens  upon  which  the  remainder 
is  to  vest:  Where  the  remainder  is  subject  to  a  condition 
precedent  to  its  vesting  which  does  not  happen  till  the  life 
tenant's  death,  there  can  be  no  right  to  possession  by  the  re- 
mainderman till  the  event  has  happened,  and  no  possession  can 
be  adverse  to  the  remainderman  till  then.  This  is  clearly  so 
where  one  in  possession  during  the  life  of  the  original  life  tenant 
takes  by  deed  from  the  life  tenant."'"    It  is  equally  so  where  the 

3"  This  is  the  explanation  of  Mc-  This  ease  is  sometimes  erroneously 

Coy    V.    Poor,    56    Md.    197,    where  cited  for  the  proposition  that  if  the 

forty-nine    years    elapsed    after    the  remainderman    is  also   interested   in 

breach  of  trust  and   the  coming  of  the  life  estate  and  has  permitted  his 

age  of  some  of  the  equitable  remain-  interests   therein   to   be   barred,   the 

dermen,  and  thirty-six  years  elapsed  statute  bars  the  remainderman.    See 

after    the    youngest    remainderman  Graff  r.  Eankin,  250  Fed.  150. 

came  of  age  before  suit  was  brought,  •"'"  McFall  v.  Kirkpatrick,  236  111. 

and   seven   years  had   elapsed  after  281 ;  Hill  v.  Hill,  264  111.  219. 
the    equitable    life    tenant 's    death 
before  suit  was  brought. 

437 


§  396]  FUTURE   INTERESTS  [Ch,  XV 

life  tenant  is  disseised. ^'^  Even  where  a  husband  who  owns  in 
fee  has  been  disseised  and  the  fee  is  barred,  the  statute  will  not 
run  against  the  wife's  contingent  dower  interest  until  the  hus- 
band's death.39  Even  though  the  dictum  of  Nelson  v.  Davidson 
were  accepted,  that  adverse  possession  against  any  life  tenant 
becomes  at  once  adverse  to  any  remainderman  so  that  both  are 
barred  when  the  statutory  period  has  once  run,  it  has  very 
properly  been  held  that  such  a  rule  could  have  no  application 
to  a  remainder  which  was  contingent  upon  an  event  which  was 
to  happen  or  not  only  on  the  death  of  the  life  tenant.  In  such 
a  case  there  can  be  no  right  to  possession  until  the  event  happens 
and  only  then  can  the  possession  of  the  disseisor  of  the  life  tenant 
become  adverse  to  the  remainderman.^^ 

§  396.  Where  the  life  tenant  is  barred  by  the  statute  will  a 
legal  contingent  remainder  be  destroyed?  If  the  effect  of  the 
running  of  the  statute  against  a  life  estate  were  to  transfer  the 
life  estate  originally  created  to  the  adverse  holder,  then,  of 
course,  there  could  be  no  destruction  of  any  legal  contingent 
remainder  by  the  running  of  the  statute  against  the  life  estate. 
We  may,  however,  assume  that  when  the  statute  runs  against 
the  life  tenant,  the  original  life  estate  is  destroyed,  or  brought 
to  an  end.  The  life  tenant  no  longer  has  any  right  of  entry  or 
right  of  action.  That  such  a  state  of  atfairs  operated  to  destroy 
the  contingent  remainder  seems  to  have  been  the  view  of  both 
Fearne  and  Butler.*'  This  conclusion  must  have  rested  upon  the 
further  fact,  not  stated,  that  the  reversioner  (pending  the  vest- 
ing of  the  contingent  remainder)   had  an  immediate  right  to 

38  Graff  V.  Kankin,  240  Fed.  150.  a  descent  be  east  as  will  take  away 

39  Steele  v.  Gellatly,  41  111.  39 ;  the  entry  of  tenant  for  life  within 
Whiting  V.  Nicholl,  46  111.  230;  the  statute  of  H.  8  c.  33,  and  drive 
Brians.  Melton,  125  111.  647;  Miller  him  to  his  action,  then  is  the  con- 
V.   Pence,   132   111.   149.  tingent     remainder     gone;     because 

■Jf  Graff  V.  Kankin,  250  Fed.  150.  there  no  longer  subsists  any  right  of 

41  Fear ne,       Cont.       Rem.       287:  entry  to  support  it,  that  right  being 

"Thus,  if  A  be  tenant  for  life  with  turned  into  a  right  of  action." 

a    contingent    remainder    over,    and  Butler   in   his   note   says:    "that, 

tenant  for  life  be  disseised,  all  the  when,  by  the  death  of  the  disseisor, 

estates  are  divested;   but   the   right  or  by  any  other  means,  the  right  of 

of  entry  of  tenant  for  life  will  sup-  entry  under  a  previous  estate  is  lost, 

port  the  contingent  remainders;  but  there  is  no  longer  a  rightful  estate, 

in  this   case,  if  the   contingent   re-  capable  of  supporting  the  contingent 

mainder   does  not   vest   before   such  remainder. ' ' 

438 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  [§396 

possession  as  soon  as  the  life  estate  was  extin^ished.  Under 
such  circumstances,  the  contingent  remainder,  if  it  took  effect 
at  all  upon  tlie  happening  of  the  contingency,  would  be  bound 
to  do  so  as  a  springing  executory  interest  cutting  short  a  previ- 
ously vested  reversion  in  fee.  Rather  than  permit  a  contingent 
remainder  to  take  effect  in  this  way  it  was  held  void  and  de- 
stroyed. The  American  authorities,  however,  clearly  deny  to  the 
reversioner  any  right  of  entry  during  the  life  of  the  original  life 
tenant  and  ])rotect  the  disseisor  in  his  possession  during  the  life 
of  the  original  life  tenant.^-  Hence,  if  Fearne's  opinion  rests 
upon  the  fact  that  the  reversioner  has  a  right  of  entry  as  soon 
as  the  life  estate  terminates  by  the  running  of  the  statute,  his 
opinion  cannot  be  used  in  this 'country  as  the  basis  for  the 
destruction  of  a  legal  contingent  remainder  by  the  running  of 
the  statute  against  a  preceding  life  estate. 

If  the  disseisor  were  regarded  as  obtaining  a  fee  simple  which 
was  good  during  the  life  of  the  original  tenant  for  life  against 
the  reversioner,  and  the  contingent  remainder  took  effect  like 
a  shifting  executory  interest  after  a  prior  fee,  it  is  hardly  prob- 
able that  it  would  be  held  void  and  destructible.^'' 

Suppose,  however,  that  the  disseisor  of  the  life  tenant  were 
held  to  acquire  a  new  title  to  an  estate  for  the  life  of  the  original 
life  tenant — a  view  heretofore  put  forward  as  the  least  objection- 
able consistent  with  the  authorities.^^  Why  under  such  circum- 
stances should  the  contingent  remainder  be  destroyed?  There  is 
a  freehold  to  support  it.  Indeed,  the  series  of  estates  would  be 
almost  precisely  the  same  as  where  A  was  given  a  life  estate  with 
an  estate  to  B  and  his  heirs  for  the  life  of  A  to  preserve  con- 
tingent remainders,  with  a  contingent  remainder  to  the  eldest 
son  of  A.  In  such  a  case  if  A's  life  estate  terminated  before 
A's  death  and  before  A's  first  son  was  born,  B  would  step  into 
a  freehold  for  the  life  of  A  to  preser\'e  the  contingent  remainder. 
So  in  the  case  put,  the  disseisor  obtains  a  new  freehold  for  the 
life  of  the  original  tenant  for  life  and  no  reason  is  perceived 
why  this  should  not  operate  to  preserve  the  contingent  re- 
mainder. 

*•:!  Ante,  §.385.  ture    Interests,"    page    120.    Moot 

*^  This   is    not,    however,    entirely       case, 
certain.    See  Kales,  "Cases  on  Fu-  **  Ante,   §386. 

439 


§  397]  FUTURE   INTERESTS  [Ch.  XV 

Topic  4. 

Where  the  Adverse  Claimant  Has  No  Notice,  Actual  or  Con- 
structive, OF  THE  Instrument  Creating  the  Life  Estate. 

§397.  Results  of  the  cases  stated:  Where  the  instrument 
which  creates  the  life  estate  and  remainder  or  reversion  is  not 
recorded  and  the  adverse  holder  or  holders  have  no  actual  notice 
of  it,^^  adverse  possession  for  a  single  statutory  period  is  suffi- 
cient to  give  the  disseisor  a  title  in  fee  valid  against  both  the  life 
tenant  and  the  remainderman  or  reversioner.^  •'•  In  the  applica- 
tion of  this  rule  it  makes  no  difference  whether  the  adverse 
holder  takes  by  deed  from  the  life  tenant^"  or  disseises  the  life 
tenant,  or  whether  the  remainder  is  vested  or  contingent. 

The  rule  evidently  proceeds  upon  the  theory  that  the  adverse 
holder  takes  from  the  one  who  appears  of  record  to  have  the  fee, 
and  such  transferee  takes  free  from  all  unrecorded  instruments 
and  interests  thereunder.  The  premise  here  is  hardly  correct. 
The  adverse  holder  does  not  take  title  from  any  one.  He  holds 
in  opposition  to  that  title.  He  extinguishes  a  former  title  and 
obtains  under  the  statute  a  new  and  original  one.  In  this  posi- 
tion he  certainly  does  not  fall  within  any  protection  given  by 
the  recording  acts.  On  the  other  side,  the  remainderman  is 
equally  barred  from  suing  w^hether  the  instrument  which  creates 
the  remainder  is  recorded  or  not.  Where  the  title  rested,  as  it 
mostly  does  in  this  class  of  cases,  in  an  ancestor  who  is  dead, 
there  is  much  carelessness  in  the  recording  of  a  will  in  all  counties 
where  the  lands  lie  so  as  to  give  notice  under  the  recording  acts. 
The  remainderman  has  some  cause  for  complaint,  when  he  sues 
for  possession  after  the  life  tenant's  death,  to  find  that  he  has 
been  barred  because  the  adverse  holder  had  no  notice,  actual  or 
constructive,  of  the  instrument  which  created  the  estates,  due 
to  some  technical  defect  in  recording  a  will  or  to  a  failure  to 
record  it  where  the  land  lay.  Nevertheless  it  must  not  be  for- 
gotten that  the  American  cases  which  give  the  remainderman  no 
right  to  possession  till  the  actual  death  of  the  original  tenant 
for  life,  and  hence  permit  no  adverse  possession  to  begin  against 

45  Graff  V.  Eankin,  2.10  Fori.  1 50 ;  Lewis    v.    Pleasants,    14.3    111.    271; 
Weigel  V.  Green,   218   111.  227;   Du-  Lewis  v.  Barnhart,  14.5  U.  S.  56. 
gan  V.  Follett,  100  111.  581.  47  Dugan  v.  Follett,  100  111.  581; 

46  Dugan  V.  Follett,  100  111.  581  ;  Lewis  v.  Pleasants,  14:5  111.  271. 

440 


Ch.  XVJ  REVEKSIONS    AXU    KKMAINUEKS  I  >5  398 

the  rcmaiiidci-  iiiilil  that  time,  havo  allowed  reversioners  and 
remaindermen  to  recover  forty  or  sixty  years  after  the  adverse 
possession  eommeneed  against  the  life  tenant.  No  doubt  this 
has  often  appeared  to  be  a  great  hardsiiip  and  the  eourts  have 
to  some  extent  been  driven  to  giving  tiie  recording  acts  an  extra- 
ordinary operation  in  order  to  prevent  such  results, 

TITLE  XII. 

VARIOUS    LEGAL    CONSEQUENCES    WHICH    DEPEND    UPON 
WHETHER  THE   FUTURE   INTEREST— USUALLY   A   RE- 
MAINDER—IS CONTINGENT  OR  NON-CONTINGENT. 

v;  398.  When  can  the  tenant  in  common  of  a  future  interest 
maintain  a  bill  for  partition :  One  of  several  tenants  in  com- 
mon of  a  reversion  ^'*  or  a  remainder,  which  is  sure  some  time 
to  take  effect  in  possession  and  wliicli  the  feudal  or  common  law 
called  vested,  may  file  a  l)ill  for  partition.-*''  it  is  equally  clear 
that  one  of  several  persons  who  were  contingent  remaindermen 
by  the  common  law  or  feudal  conception  of  that  term,  cannot 
have  partition  in  this  state.^^  Recent  cases  here  have  gone  far 
toward  establishing  the  further  proposition  that  a  remainder 
which  under  the  feudal  or  common  law  was  called  vested,  but 
which  was  uncertain  ever  to  take  effect  in  possession  because 
it  may  be  divested  by  a  condition  subsequent,  is  not  subject  to 
involuntary  partition  while  the  uncertainty  of  its  ever  taking 
effect  in  possession  continues.^i     The  fact  that  the  remainder  is 

"Hill    V,     Reno,     112    111.     154;  111.   105;    Quinlan   v.  Wiekinan,   238 

Whitaker  v.  Rhodes,  242  111.   146.  111.  .-59. 

<»  Drake  r.  Merkle,  153  111.  318;  The  suggestion  of  Burton  v.  Gag- 
Deadnian  v.  Yantis,  230  111.  243.  non,  180  111.  345,  that  for  the  pur- 
See  also  Miller  v.  Lanning,  211  111.  pose  of  enabling  one  of  the  several 
620;  Dee  v.  Dee,  212  111.  338,  354;  co-owners  of  a  future  interest  to  file 
Cummins  v.  Drake,  265  111.  111.  a  bill  for  partition,  a  shifting  execu- 

50  Ruddell  V.  Wren,  208  111.   508,  tory  devise  would  be  ' '  vested ' '  pro- 

513,  et  seq.;  Cumniings  v.  Lohr,  246  vided  it  conformed  to  the  New  York 

111.  577  (where  the  interest  of  which  statutory  definition   of  a  vested   in- 

partition  was  sought  was  an  execu-  terest,  must  be  regarded  as  entirely 

tory  devise).  unsound  and  overruled  by  the  later 

31  Goodrich   v.   Goodrich,   219   111.  cases  above  cited:    See  Chicago  Le- 

426,  1  111.  Law  Rev.  184;  Cummings  gal    News,   June    24,    1905,    p.    362, 

1'.  Hamilton,  200  111.  480  (as  to  180  et  seq.;  post,  §482. 
acres) ;  Seymour  v.  Bowles,  172  111.  Observe,    however,    that    interests 

521;     Heininger    v.    Meissmer,    261  in    possession    may    be    partitioned 

441 


§  399]  FUTURE    INTERESTS  [Ch.  XV 

vested  in  the  children  of  the  life  tenant  subject  only  to  be 
divested  pro  tanto  by  the  birth  of  other  children,  will  prevent 
any  child  filing  a  bill  for  partition. ^^  g^^  ^^g  f^ct  that  the  inter- 
ests of  some  co-tenants  of  the  future  interest  are  uncertain  to  vest 
indefeasibly  and  so  are  not  subject  to  partition  at  their  request, 
does  not  prevent  the  filing  of  a  bill  for  partition  by  one  co-tenant 
of  the  future  interest  whose  interest  is  indefeasibly  vested. ^^ 

It  is  clear,  therefore,  that  whether  a  bill  for  partition  lies  by 
the  holder  of  a  future  interest  does  not  depend  upon  whether  the 
future  interest  is  a  vested  or  contingent  remainder  in  the  feudal 
sense,  but  upon  whether  it  is  vested  and  indefeasible  on  the  one 
side,  or  vested  and  defeasible,  or  contingent  on  the  other.  It 
would  follow,  therefore,  that  partition  may  be  had  of  a  certain 
executory  interest,  i.  e.,  one  which  is  neither  vested  nor  con- 
tingent in  the  common  law  sense  ^^  — as  where  land  is  limited 
to  A,  B  and  C  from  and  after  the  1st  of  January  next. 

It  appears  that  at  least  so  long  as  the  remainderman  is  out 
of  possession  he  may  agree,  or  the  creator  of  the  remainder  may 
provide  that  it  shall  not  be  subject  to  partition.^^ 

§  399.  Right  of  holder  of  future  interest  to  prevent  waste 
by  the  one  in  possession:  Where  the  person  in  possession  of 
the  land  and  committing  the  alleged  act  of  waste  is  the  holder 
in  fee  and  the  plaintiff  is  an  executory  devisee  or  the  holder  of 
a  shifting  executory  interest,  or  a  possibility  of  reverter  after 
a  determinable  fee,  he  has  no  action  for  waste  at  law.  Nor  will 
equity  enjoin  the  commission  of  such  acts,  done  bona  fide,  as  a 
pinident  man  who  was  the  absolute  and  indefeasible  owner  of 
the  land  would  do.^''  But  equity  will  enjoin  the  acts  of  the 
person  in  possession  where  such  are  done  maliciously  or  where 
they  are  in  excess  of  what  a  prudent  man  would  do  with  his 
own.^'^ 

The  contingent  remainderman  after  a  life  estate  had  no  action 

though    subject    to    be    terminated:  -'^Post,  §727. 

Askins  v.  Merritt,  254  111.  92.  56  Gannon    v.    Peterson,    193    111. 

52Eichardson  v.  Van  Gundy,  271  372;    Fifer   v.    Allen,   228   111.   507; 

111.  476.  Dees  v.   Cheuvronts,  240  111.   486. 

53  Bush   V.    HamiU,   273    111.    132;  57  Turner  v.  Wright,  2  De  G.,  F. 

Pitzer    V.    Morrison,    272    111.    291;  &  J.,  234;   Ames'   Cases  on  Equity 

Betz  V.  Farling,  274  lU.  107.  Jurisdiction,  476. 

S"!  Fearne,  Cont.   Rem.   1,  Butler's 
note. 

442  ^ 


Ch.  XV]  REVERSIONS    AND    REMAINDERS  (§400 

at  law  for  waste,  because  he  was  not  tiie  holder  of  the  next  estate 
of  inheritance  after  the  estate  in  possession,  for  the  reason  that 
the  reversioner  pending  the  vesting  of  the  eontingent  remainder 
had  it,  and  hence  was  the  only  one  who  had  an  action  at  law 
for  waste.  The  situation  so  far  as  the  contingent  remainderman 
was  concerned  was  like  that  where  the  estates  were  to  A  for 
life,  to  B  for  life,  and  to  C  in  fee.  C  had  no  action  for  waste 
at  law  against  A.  But  ecjuity  gave  C  an  injunction  against  A 
to  restrain  the  same  acts  on  the  part  of  A  that  C  could  have 
recovered  damages  for  at  law  had  C  held  the  next  estate  in 
reversion  after  A's  life  estate.-'"'^  The  injunction  was  for  waste 
which  was  in  the  nature  of  legal  waste.  So,  it  is  believed,  where 
after  the  life  estate  there  is  a  reversion  in  fee  in  B  and  a  con- 
tingent remainder  in  C  in  fee,  while  B  could  have  an  action  at 
law  for  waste,  and  C  could  not,  C  could  have  an  injunction  in 
ecjuity  to  restrain  the  doing  of  any  acts  by  the  life  tenant  which 
would  constitute  waste,  if  the  suit  were  by  B.  That,  it  is  be- 
lieved, is  exactly  the  result  reached  in  the  recent  case  of  Ohio  Oil 
Co.  V.  Daughetee.^^ 

Thus,  it  is  clear  that  if  the  act  of  the  first  taker  in  fee  is  that 
of  obtaining  oil  from  the  land,  one  entitled  to  a  shifting  estate 
of  inheritance  has  no  ground  for  an  injunction  to  restrain 
waste,*'"  while  a  contingent  remainderman  after  a  life  estate 
has.*'^  In  the  former  case  the  act  must  be  either  malicious  or 
such  as  a  prudent  man  would  not  do  with  his  own.  Obvioush', 
sinking  oil  wells  is  not  such  an  act,  while  in  the  latter  case  any 
act  on  the  part  of  the  life  tenant  which  would  be  waste  when  the 
suit  was  by  the  reversioner,  would  lie  enjoined  by  a  court  of 
equity  at  the  instance  of  the  contingent  remainderman.  Clearly, 
sinking  new  oil  wells  is  such  an  act. 

§  400.  When  the  holder  of  a  future  interest  need  not  be 
made  a  party  defendant  to  a  suit  in  chancery:  Those  who  have 
equitable  interests  subject  to  a  condition  precedent  in  fact  and 
in  form  to  their  ever  taking  effect  in  possession  are  represented 

58  Anonymous,  Moore,  554,  placi-  injuiu'tion    was   denied   because   the 
lum,   748;    Ames'   Cases   on   Equity  remainder  was  eontingent. 
Jurisdiction,  467.  '■"  Dees  r.  Cheuvronts,  240  111.  486. 

59  240  lU.  361.  See  also  Smith  i'.  '■i  Ohio  Oil  Co.  v.  Daughetee,  240 
Tucker,  250  111.  50.     But  in  Robert-  111.  ;!61. 

son   V.   Guenthor,    241    111.    511,   the 

443 


§401]  FUTURE   INTERESTS  [Ch.  XV 

by  the  trustee  in  any  litigation  relating  to  the  trust  estate.  The 
rule  is  that  they  are  bound  by  the  decree  though  not  made 
parties.^"'2  If,  however,  the  future  interest  is  vested  in  the  feudal 
sense  and  indefeasible,  the  holder,  to  be  bound,  must  be  made 
a  party.^^  In  one  ease  where  the  remainder  was  vested  in  the 
feudal  sense  but  was  defeasible  upon  the  happening  of  a  condi- 
tion subsequent  in  form  the  remainderman  was  bound,  though 
not  made  a  party.*^^  If  this  stands  it  indicates  that  the  deter- 
mination of  what  holders  of  future  interests  may  be  bound  by  a 
decree  when  they  are  not  parties,  does  not  turn  on  the  feudal 
distinction  between  vested  and  contingent  remainders. 

§  401.  Whether  an  inheritance  tax  is  immediately  assess- 
able: Before  Section  25  of  the  Inheritance  Tax  Act '''•"'  the 
question  arose  whether  an  inheritance  tax  on  a  future  interest 
was  immediately'  assessable  or  not.  Of  course  if  the  future 
interest  was  a  vested  remainder  in  the  feudal  sense  and  also 
indefeasible,  the  tax  was  assessable  at  once.  On  the  other  hand, 
if  the  future  interest  were  subject  to  a  condition  precedent  in 
form  to  its  ever  taking  effect  in  possession,  the  assessment  of  the 
tax  must  await  the  happening  of  the  contingency.  It  was  also 
held  that  even  though  the  remainder  was  vested  in  the  feudal 
sense,  but  was  also  defeasible  by  the  happening  of  a  condition 
subsequent  in  form  divesting  the  remainder,  it  was  contingent 
in  such  a  sense  that  the  inheritance  tax  was  not  immediatelj^ 
assessable.^*^  This  makes  it  clear  that  the  feudal  distinction 
between  vested  and  contingent  remainders  was  not  involved. 
The  real  distinction  was  between  non-contingent  and  indefeasible 
interests  and  contingent  and  defeasible  interests.  It  followed 
that  the  tax  was  assessable  upon  a  non-contingent  or  certain 
executory  interest — as  a  gift  to  A  ten  years  after  the  testator's 
death.6- 

fi2  Amerif-an  Bible  Society  v.  Price,  <•*  McCampbcll  v.   Mason,   151   111. 

115  111.  623,   644;    Temple  v.  Scott,  500,  510-511. 

143   111.   290;    Thompson  v.   Adams,  cs  Laws  1909,  p.  311   (111.  Session 

205  111.  552,  559    (unborn  persons).  Laws). 

83  In  Burton  v.   Gagnon,   180   111.  oo  People   v.    McCormick,   208   111. 

345,  the  court  went  very  far   (post,  437,    443,    444;    Billings   v.    People, 

§482)    in   making   out  a   vested   re-  189  111.  472,  485;   Ayers  v.  Chicago 

mainder   so   that   the   remainderman  Title  &  Trust  Co.,  187  111.  42. 

would  be   bound  by  a  partition  de-  «'  In  re  Estate  of  Kingman,  220 

eree  to  which  they  were  parties.  111.  563. 

444 


CHAPTER  XVI. 

THE    STATUTORY    REMAINDER    CREATED    BY    THE 

STATUTE    ON    ENTAILS    AND    REMAINDERS 

LIMITED    AFTER    AN    ESTATE    TAIL. 

TITLE  I. 
THE  STATl^TORY  REMAINDER. 

§402.  Statutes:  There  have  been  in  Arkansas,  Colorado, 
^lissouri  and  Vermont  statutes  concerning  estates  tail,  in  every 
respect  material  to  the  present  inquiry,  identical  with  section 
6  of  the  Illinois  Act  on  Conveyances.^  This  last  is  as  follows: 
**In  cases  where,  by  the  common  law,^  any  person  or  persons 
might  hereafter  become  seized,  in  fee  tail,  of  any  lands,  tene- 
ments or  hereditaments,  by  virtue  of  any  devise,  gift,  grant  or 
other  conveyance,  hereafter  to  be  made,  or  by  any  other  means 
whatsoever,  such  person  or  persons,  instead  of  being  or  becoming 
seized  thereof  in  fee  tail,  shall  be  deemed  and  adjudged  to  be, 
and  become  seized  thereof,  for  his  or  her  natural  life  only,  and 
the  remainder  shall  pass  in  fee  simple  absolute,  to  the  person  or 
persons  whom  the  estate  tail  would,  on  the  death  of  the  first 
grantee,  devisee,  donee  in  tail,  first  pass,  according  to  the  course 

1  R.  S.  1874,  Ch.  :!0,  §6.  Kurd's  estates  by  the  common  law,  when 
R.  S.  1899,  Ch.  .30,  §  6.  we  have  seen  that  estates  tail  grew 

2  The  present  Missouri  Statute  out  of  the  Statute  de  donis,  and 
(R.  S.  1899,  Vol.  1,  par.  4592)  not  out  of  the  common  law.  *  *  * 
reads,  "where  by  the  Common  or  If,  as  is  contended  by  the  defend- 
Statute  law  of  England  any  person  ants  in  error,  the  General  Assembly 
might  become  seized  in  fee  tail,  intended  to  restore  the  common  law 
*  *  *  "so  that  it  may  be  re-  as  it  stood  lief  ore  the  adoption  of 
gardcd  as  clearly  referring-  to  es-  the  Statute  de  donis,  they  would 
tates  tail  created  by  the  Statute  de  simply  have  repealed  that  statute, 
donis  of  Edward  I.  The  same  con-  and  left  the  donee  with  power,  on 
struction  is  put  upon  the  language  the  birth  of  issue,  to  alien  the  estate, 
of  the  Illinois  Statute:  "The  Gon-  and  re-purchase,  and  thus  cut  off 
eral  Assembly  must  have  intended  both  the  remainder  and  reversion." 
to  refer  to  estates  tail  created  by  the  Per  "Walker,  C.  J.,  in  Frazer  v. 
Statute  de  donis.  They  speak  of  Board  of  Supervisors,  74  111.  282, 
persons    becoming    seized    of    such  287,   28S. 

445 


§402] 


FUTURE   INTERESTS 


[Ch.XVI 


of  the  common  law,  by  virtue  of  such  devise,  gift,  grant  or  con- 
veyance. ' '   . 

Of  these  the  Missouri  Act  of  1825  ^  seems  to  have  been  the 
tirst.  It  remained  in  force  in  Missouri  until  1845,  when  it  was 
so  altered  •*  as  to  read  that  ' '  upon  the  death  of  such  grantee  or 
grantee,  devisee,  donee  in  tail,  first  pass,  according  to  the  course 
devisee  [in  tail],  the  said  lands  and  tenements  shall  go  and  be 
vested  in  the  ehildren  of  such  grantee  or  devisee,  equally  to  be 
divided  between  them,  as  tenants  in  common  in  fee ;  but  if  there 
be  only  one  child,  then  to  that  one  in  fee;  and  if  any  child  be 
dead,  the  part  which  would  have  come  to  him  or  her,  shall  go 
to  his  or  her  issue,  and  if  there  be  no  issue,  then  to  his  or  her 
heirs.  "^  In  1866,*''  however,  the  IMissouri  Legislature  restored 
the  Act  of  1825  to  the  statute  book.  In  1827,*^  Illinois  copied  » 
the  Missouri  Act  of  1825  and  since  then  the  law  here  has  re- 
mained in  force  without  change.'*  In  Arkansas  the  statute 
appeared  first  in  1837;^"  in  Vermont  in  1840;  ^^  and  in  Colo- 
rado in  1867.1-  In  these  three  states  the  statute  has  remained 
in  force  since  its  first  passage  in  its  present  form.^^ 


3  B.  S.  1825,  Act  concerning  con- 
veyances, §4;  E.  S.  1835,  Act  regu- 
lating conveyances,  §  5. 

•t  K.  S.  1845,  Act  on  Conveyances, 
§  5 ;   K.  S.  1855,  Ch.  22,  §  5. 

5  Observe  that  the  .New  Jersey 
Act  of  June  13th,  1820  (Rev.  Stat. 
1821,  page  774,  §2),  was  in  sub- 
stantially this  form,  giving  the  re- 
mainder in  fee  to  "children"  of 
the  donee.  It  seems  to  have  con- 
tinued in  force  in  New  Jersey  down 
to  the  present  time.  (Elhier's  Di- 
gest, p.  130,  §6;  Stat,  of  N.  J. 
1874,  p.  341,  §11;  Nixon's  Digest 
1709-1855,  p.  196,  §  11;  Gen'l  Stats, 
of  N.  J.  1709-1895,  Vol.  2,  p.  1195, 
§11). 

6E.  S.  1866,  Ch.  108,  §4;  Wag- 
ner's Mo.  Stat.  1870,  p.  1351,  §4; 
R.  S.  1879,  p.  675,  §3941;  R.  S. 
1899,  Vol.  1,  §  4592. 

TLaws  1827,  p.  95;  1  A.  &  D.  R. 
E.  S.,  p.  75. 


s  It  would  seem  as  if  the  Illinois 
Statute  of  1827  must  have  been 
copied  from  the  Missouri  Act  of 
1825.  The  two  are  absolutely  iden- 
tical in  language,  except  that  the 
Illinois  Act  has  omitted  six  words 
which  in  the  Missouri  Statute  make 
it  apply  to  all  estates  tail  created 
and  existing  at  the  time  when  the 
act  went  into  effect. 

OR.  S.  1845,  p.  104;  R.  S.  1874, 
p.  273. 

10  R.  S.  1837,  p.  189,  Ch.  31,  §  5. 

11  R.  S.  1840,  Ch.  59,  §  1,  p.  310. 

12  R.  S.  1867,  Ch.  17,  §5. 

^^  Arlcmisas :  Sandels  &  Hill,  Di- 
gest of  Statutes  1894,  p.  352,  Ch. 
29,  §  700.  Vermont:  G.  L.  1862,  Ch. 
64,  §  1,  p.  446;  V.  S.  1894,  Ch.  105, 
§  2201,  p.  426.  Colorado:  R.  S.  1877, 
Ch.  18,  §  6;  Mill's  Ann.  Stats.,  Vol. 
1,  p.  584,  §432   (1891). 


446 


Cn.  XVI|     iji:.m.\i.\'I)i:r  hy  the  statute  on  entails  U  404 

^4.03.  Their  operation:  Do  these  statutes  operate  to  turn 
ail  estate  tail  of  vvhicli  a  grantee  actually  becomes  seized  into 
the  statutory  life  estate  and  remainder,  or  do  they  operate  to 
give  to  language  of  a  deed  appropriate  to  create  an  estate  tail 
the  effect,  when  finally  uttered  upon  the  delivery  of  tiie  deed,  of 
language  apt  and  sufficient  to  create  ihe  statutory  estates?  The 
result  in  Spencer  v.  Spruell,^^  seems  to  pi'esent  a  decisive  answer 
to  tiiis  (piestion.  Thei'e  the  conveyance  by  deed  ran  to  A  and 
the  heii"s  of  her  body.  The  deed  was  fully  delivered  so  far  as 
the  grantor  was  coneerned  by  being  put  into  the  liands  of  a  third 
person  and  thereby  placed  irrevocably  out  of  the  grantor's  con- 
trol. It  looks  (though  the  report  is  not  clear  upon  the  point) 
as  if  at  the  time  the  deed  was  executed,  A  had  children  alive. 
The  donee  in  tail,  A,  refused  to  accept  the  conveyance.  It  was 
held  that,  in  consequence,  the  deed  never  had  any  effect  at  all, 
because  A  nevei-  became  actually  seized  of  an  estate  tail.  If  the 
statute  had  o])erated  only  to  cause  one  form  of  language  to  be 
equivalent  to  another  appropriate  to  confer  the  statutory  estates, 
the  result  must  have  been  different.  A  remainder  would  then 
have  been  limited  to  minor  great  grandchildren  of  the  grantor 
;ind,  under  the  doctrine  of  our  Supreme  Court,  acceptance  would 
have  been  presumed.' ''  The  life  tenant  would  have  renounced, 
and  the  childi'en  would,  accordingly,  at  once  have  taken  the 
fee.i" 

i$  404.  The  statutory  remainder — Prior  to  the  birth  of  issue 
of  the  donee  in  tail:  So  long  as  there  is  no  issue  of  tlie  donee 
in  tail  the  statutoi-y  remainder  is  a  common  law  contingent 
remaiiuler.'"      It    now   seems   to   be   subject   to  the   rule  of  de- 

1*  196  111.  119.  m illation  of  the  preceding  estate  or 

1^' Winterbottoni   i;.   Pattison,    152  fail    altogether,    be    applicable,    the 

111.   ;334;    Coleman    v.   Coleman,   216  result   reached  in  the  above  case  ia 

111.  261.  exj)lainable  upon  the  application  of 

icQf  course  if  A  had  no  children  that  rule, 

living  at   the  time  of  the  execution  i7  Frazer    v.    Board    of    Supervis- 

of  the  deed,  or  if  the  statutory   re-  nrs,    74    111.    282,    290;    Atherton    r. 

mainder  to  the  children  be  regarded  Roche,    192    111.    252,    257,    semble; 

as  contingent,  after  a  child  is  born  Dinwiddle  v.  Self,  145  111.  290,  :iOO, 

(which    it    seema   it    is   not    in    this  semhle ;   Winchell    v,    Winchell,    259 

state,  post,  S  406),  and  the  rule,  that  111.  471,  475;   Moore  r.  Reddel,  259 

a    contingent    future    interest    after  111.  36,  47 ;  Doney  v.  Clipson,  285  111. 

a  ]iarticular  estate  of  freehold  which  75;  Lewin  v.  Bell,  285  111.  227. 
can,  must  vest  at  or  l)efore  the  ter- 

447 


§405] 


FUTURE   INTERESTS 


[Ch.  XVI 


striu'til)ility  of  contiiigoiit  remainders.'*^ 

§  405.  After  the  birth  of  issue  of  the  donee  in  tail— Three 
views  as  to  the  character  of  the  remainder  and  the  persons 
entitled  to  it:  First:  The  statute  expressly  limits  the  re- 
mainder in  fee  to  the  "person  or  persons  whom  the  estate  tail 
would,  on  the  death  of  the  first  grantee,  devisee,  donee  in  tail, 
first  pass,  according  to  the  course  of  the  common  law,  by  virtue 
of  such  devise,  gift,  grant  or  conveyance."  At  common  law,  it 
was  impossible  to  ascertain  to  whom  the  estate  would  pass  until 
the  death  of  the  donee  in  tail,  since,  by  the  course  of  the  common 
law,  the  estate  tail  at  that  time  passed  regularly  by  descent  to 
the  first  tenant  in  tail's  heir  at  law,  provided  such  heir  at  law 
was  of  the  issue  of  the  body  of  the  tenant  in  tail,'"  and  since  no 
one  can  be  the  heir  of  a  living  person.^'*  The  remainder,  then, 
was  clearly  subject  to  a  condition  precedent  and  the  conditional 
element  was  incorporated  into  the  description  of  the  remainder- 
man.2i  xhe  case,  under  the  English  authorities,  would  be  one 
of  the  typical  examples  of  a  contingent  remainder.22     In  Ar- 


i»Ante,  §318;  Lewin  v.  Bell,  285 
111.  227;  Frazer  v.  Board  of  Super- 
visors, 74  111.  282  contra. 

19  John  de  Manville  's  Case,  Co. 
Lit.  26b;  4  Oray's  Cases  on  Prop., 
9. 

20  Seymour  v.  Bowles,  172  111. 
521,  524;  McCartney  v.  Osburn,  118 
111.  403,  415;  Cooper  v.  Cooper,  76 
111.  57;  Butler  v.  Huestis,  68  111. 
594,  598. 

21  Gray,  Kule  against  Perpetui- 
ties, §  108;  ante,  §  345. 

22  Ante,  §308;  Fearne  C.  R.  9; 
Fearne  Cont.  Rem.  Smith 's  Notes, 
§§383-385;  Leake,  Digest  of  Land 
Laws,  p.  324 ;  Challis,  Real  Property, 
2nd  ed.  120.  All  these  writers  state 
the  typical  case  of  a  contingent  re- 
mainder of  Fearne 's  fourth  class 
to  be  to  A  for  life,  remainder  to 
the  right  heirs  of  J.  S.,  who  is  at 
that     time     living.       Cliallis     says: 


"  *  *  *  the  remainder  cannot 
vest  until  the  ascertainment,  or 
coming  into  being  of  a  person  to 
satisfy  the  description  in  the  limi- 
tation; and  in  the  case  of  limita- 
tions to  the  heirs  of  a  living  per- 
son, such  ascertainment  can  only 
take  place  upon  his  death;  because 
7iemo  est  heres  viventis.  It  might 
at  first  sight  be  thought  that  the 
remainder  is  vested  in  the  heir  pre- 
sumptive or  heir  apparent;  but  as 
the  heir  is,  hiy  the  terms  of  the 
limitation,  to  take  as  a  purchaser, 
and  as  the  purchaser  is  to  be  the 
person  who  in  fact  comes  within 
the  description  of  heir,  it  is  clear 
that  the  remainder  cannot  vest  in 
the  heir  presumptive  or  apparent 
so  long  as  his  heirship  remains  only 
presumptive  or  api)arent,  because 
such  a  person  may  not,  in  fact,  ever 
be  the   true   heir   at  all,  and   there- 


448 


Ch.  XVI]       REMAIXDER    HY    THK    STATCTp:   ON    ENTAILS  [§406 

kansas^"  and  Verinont^^  the  remainder  is  held  to  be  contingent. 

Second:  Under  the  New  York  statutory  definition  ^^  the 
remainder  would  be  vested  and  alienable  inter  vivos.  It  would, 
however,  be  divested  as  to  those  who  died  before  the  life  tenant, 
so  that  at  the  life  tenant's  death  only  those  who  were  in  fact 
heirs  of  the  body  of  the  life  tenant  would  take. 

Third:  If  the  remainder  were  vested  in  the  feudal  or  common 
law  sense  and  not  subject  to  be  divested,  the  statute  must  be 
regarded  as  creating  a  remainder  in  the  "children"  of  the  life 
tenant,  so  that  the  remainder  vests  in  the  feudal  sense  in  each 
child  when  born,  subject  only  to  open  and  let  in  others,  and  not 
subject  to  be  divested  so  far  as  the  operation  of  the  statute  is 
concerned. 

§  406.  State  of  the  decisions  of  the  Illinois  Supreme  Court : 
These  have  leaned  more  or  less  in  favor  of  each  of  the  three 
views  aJ)Ove  mentioned,  but  seem  now  to  have  settled  down  in 
favor  of  the  third.  In  a  number  of  cases  where,  however,  the 
l)oint  was  not  strictly  involved,  the  court  has  referred  to  the 
statutory  remainder  as  one  to  the  "heirs  of  the  body"  of  the 
life  tenant,-"  or  to  "the  person  or  persons  who  were  in  the  class 
of  persons  to  whom  the  estate  tail  might  first  pass  on  the  death 
of  the  first  grantee,  as  soon  as  such  person  or  persons  came  into 
being.-'  Such  expressions  described  a  contingent  remainder 
according  to  a  literal  reading  of  the  statute. 

During  the  considerable  period  when  the  court  was  not  dis- 
tinguishing clearly  between  the  New  York  statutory  definition 
of  a  vested  remainder  and  the  common  law  definition,  it  was 
inclined  to  saj'  that  the  remainder  to  the  "heirs  of  the  body" 
vested  upon  the  birth  of  an  expectant  or  presumptive  heir  of  the 
body,  but  that  such  a  vested  interest  was  subject  to  be  divested 
by  tlie  death  of  such  a  presumptive  or  expectant  heir  before  the 

fore   may   never  be  qualified,   under  23  Horsley    r.    Ililburn,    44    Ark. 

the  terms  of  the  limitation,  to  take  4.58,  476. 

the  estate  at  all."  ^*  In  re  Estate  Kelso,  69  Vt.  272; 

Observe   that  the  English   writers  In  re  Wells'  Estate,  69  Vt.  388. 
had    no    occasion    to    deal    with    the  25  Ante,  §  8.'i7. 

case   of   a  limitation   to   A   for  life  2c  Metzen  v.  Sehopp,  202  111.  275; 

with    a   remainder    to    the  heirs   of  Bowlin  r.  White,  244  111.  623 ;  Dick 

A's  body  because  such  a  limitation  v.  Kicker,  222  111.  413. 
would    have    been    subject    to    the  -"^  Aetna  Life  Ins.  Co.  v.  Hoppin, 

Rule  in  Shelley's  Case,  249  111.  406,  415;  214  Fed.  928, 


Kales  Fut.  Int. — 29 


449 


§406]  FUTURE  INTERESTS  [Ch.  XVI 

life  tenant, "so  that  those  who  finally  took  would  be  in  fact  heirs 
of  the  body  of  the  life  tenant  at  his  death.  Thus  in  Butler  v. 
Huestis^^  the  court  said  "Mrs.  Huestis  [the  donee  in  tail]  under 
our  statute,  would  take  a  life  estate  in  the  property  and  the 
remainder  would  pass  in  fee  simple  absolute  to  her  children, 
although  it  might  open  to  let  in  after  born  children,  and  he 
divested  as  to  such  as  should  die  before  the  determination  of  the 
life  estate."  Later,  in  Lehndorf  v.  Cope,^^  wc  have  the  dictum 
of  :\rr.  Justice  Shope  that  the  remainder  though  vested  is  sub- 
ject to  be  divested.  Speaking  of  the  statutory  remainder  he 
said:  "The  person  to  whom  the  remainder  is  limited  is  ascer- 
tained, the  event  upon  which  it  is  to  take  effect  is  certain  to 
happen,  and  although  it  may  he  defeated  hij  the  death  of  such 
person  he  fore  the  determination  of  the  particular  estate,  it  is  a 
vested  remainder," 

From  the  first,  however,  there  have  been  dicta  and  actual  hold- 
ings that  the  remainder  vests  in  each  child  of  the  life  tenant 
upon  birth  and,  when  so  vested,  is  indefeasible.  This  means 
that  the  statutory  remainder  was  in  reality  a  remainder  to  the 
"children"  of  the  life  tenant.  ThiLs  in  Voris  v.  Sloan,^^  the 
court  actually  held  the  remainder  indefeasible  by  declaring  it 
error  in  a  decree  not  to  recognize  that,  upon  the  death  of  two 
children  of  the  donee  without  issue  surviving,  the  children's 
share  descended  to  their  mother,  the  donee  in  tail,  as  well  as 
to  the  other  children.  Subsequently  in  Welliver  v.  Jones,^^  the 
court  again  held  squarely  that  the  remainder  was  not  subject 
to  be  divested,  so  that,  when  the  sole  lineal  heir  of  the  donee 
died  without  leaving  issue  in  the  life  of  the  donee,  the  remainder 
passed  by  descent  to  her  collateral  heirs,  viz.  her  mother  the 
donee,  and  half  brothers  and  sisters  who  were  children  of  the 
donee's  husband's  first  wife.  Still  later,  in  Kyner  v.  Boll,^^ 
there  is  an  express  recognition  of  the  propriety  of  the  result 

28  68  111.  594,  598.  life  estate,  and  subject  to  open  and 
20  122   111.   317,  331.  let  in  after  born  children,  proceed- 
so  68  111.  588.  ed    as    follows:     "When    the    child 
31  166  111.  80.  Eugene  died  before  the  birth  of  an- 
32 182    111.    171,    177.      There    the  other   child,   such   fee   so   vested   in 
Court,  after  stating  that  upon  the  him  passed  to  his  heirs-at-law,  who 
birth  of  Eugene,  the  first  child  of  were  his  father  and  mother,  subject 
the  donee  in  tail,  he  took  an  estate  to  be  divested  pro  tanto  to  let  in 
in  fee  simple  subject  to  the  donee 's  after  born  children. ' ' 

450 


Ch.  XVT]       KKMAIXDKR   BY    THE   STATUTE   ON    ENTAILS  f  ?^  407 

reached  in  Voris  v.  Sloan  and  Welliver  v.  Jones.  Recently  the 
court  in  Moore  v.  Rcddel  '■^^  and  Winchell  v.  Winchell  ^*  appears 
to  have  settled  tlie  law  of  the  State  in  favor  of  the  holding  in 
Welliver  v.  Jones.'-^^ 

For  a  long  time  it  was  apparently  the  holding  of  our  Supreme 
Court  that  the  Rule  in  Shellci/'s  Case  only  ai)plied  to  create  a 
fee.  It  had  no  application  to  create  an  estate  tail.'^"  Hence  it 
would  not  apply  where  the  limitations  were  to  A  for  life,  re- 
mainder to  the  heirs  of  the  body  of  A.  The  reason  for  this 
was  that,  if  upon  the  application  of  the  Rtile  in  Shelley's  Case 
to  create  an  estate  tail,  the  Statute  on  Entails  immediately 
turned  the  estate  tail  back  into  the  same  limitations,  there  was 
no  use  in  applying  the  Rule  in  Shelley's  Case.^"  Hence  it  was 
said  that  the  Rule  m  Shelley's  Case  was  abolished  so  far  as  a 
fee  tail  was  concerned.^^  Since,  however,  it  has  become  the 
settled  rule  of  the  court  that  the  remainder  is  in  fact  to  the  chil- 
dren of  the  donee  in  tail  and  vests  in  each  child  upon  birth,  sub- 
ject only  to  open  and  let  in  others,  the  reason  for  not  applying 
the  Rule  in  Shelley's  Case  to  effect  the  creation  of  an  estate  tail, 
fails.  "We,  therefore,  find  the  court  applying  the  Rule  in  Shel- 
ley's Case  freely  where  the  remainder  is  to  the  heirs  of  the  body 
of  the  life  tenant. ^'^ 

§  407.  Assuming-  that  the  statutory  remainder  is  limited  to 
"children" — (1)  Can  the  remainderman  be  restricted  to  a 
special  class  of  children  in  the  case  of  an  estate  tail  special? 
A  New  Jersey  statute  of  1820,^''  in  terms  created  a  remainder 

33  259  111.  36.  remainder  in  fee  to  the  bodily  heirs 

34  259  111.  471.  of   herself   and    her   husband.      The 

35  See  also  Kolmer  v.  Miles,  270  Court  then  said  that,  even  jiroceed- 
111.  20 ;  Richardson  r.  Van  Gundy,  ing  upon  the  supposition  that  M.  A. 
271  111.  476;  Doney  v.  Clipson,  285  L.  took  a  life  estate  by  the  origirnl 
111.  75;  Lewin  v.  Bell,  285  111.  227.  limitation    in    the    deed,    the    result 

36  Post,  §  418.  would  be  the  same,  since  M.  A.  L., 
3T  Such    is   the    reasoning    of    Mr.       by     tlie     Rule     in     Shelley's     case. 

Justice  Shope  in  Lehndorf  v.  Cope,  "would,  at  common  law,  be  seized 

122  111.   317,  331.     There  the  deed  of  an  estate  in  fee  tail,  and  brought 

ran  to  "M.  A.  L.  and  her  heirs  by  directly  within  the  terms  of  Section 

her  present  husband,  H.  L. "     This  6 "  of  the  Act  Concerning  Couvey- 

was   held   to   give   M.   A.    L.   a   fee  ances. 

tail    special    at    common    law   which  as  Post,  §  418. 

the    statute    on    estates    tail    turned  3o  Post,  §  420. 

into  a  life  estate  to  M.  A.  L.  and  a  *o  Rev.  p.  299,  §§  10,  11. 

451 


§  408]  FUTURE  INTERESTS  [Ch.  XVI 

in  the  "children"  of  the  donee.^^  Under  this  Act  if  an  estate 
tail  be  limited  to  A  and  the  heirs  of  his  body  by  a  particular 
wife,  B,  and  he  have  no  children  by  B,  but  does  have  children 
by  another  and  different  wife,  the  issue  of  such  different  wife 
will  take  the  remainder  in  fee,  because  the  statute  says  "chil- 
dren" without  distinguishing  between  special  classes  of  chil- 
dren.^^  Yet  in  this  State  the  remainder  has  been  restricted  to 
children  of  the  donee  in  tail  by  the  particular  wife  "^^  even  when 
the  statutory  remainder  was  held  to  be  vested  indefeasibly  in 
the  children  when  born.^'* 

§  408.  (2)  At  what  period  of  time  does  the  class  close? 
The  court  evidently  assumes  that  the  usual  rule  applies  and 
that  the  class  may  increase  up  to  the  time  of  the  death  of  the 
life  tenant;  nor  does  the  court  find  any  impediment  to  this  in 
the  circumstances  that  the  estate  tail  is  created  by  deed  ^^  and 
the  donee  in  tail  had  children  in  esse  when  the  estate  tail  was 
created.'**^ 

§  409.  If  the  language  of  the  statute  were  taken  literally, 
who  precisely  would  be  entitled  to  the  remainder — Those  who 
are  lineal  heirs  according  to  Blackstone's  Canons  of  Descent? 
or  those  who  are  lineal  heirs  according  to  the  Statutes  on 
Descent?  Since  it  is  now  settled  that  the  statutory  remainder 
is  "to  children"  and  not  to  the  "heirs  of  the  body"  of  the 
donee  entail,  the  proposed  inquiry  is  academic,  and  yet  it  is 
useful  and  important  as  indicating  some  of  the  difficulties,  and 
a  very  great  incongruity  of  result,  in  taking  the  wording  of  the 
statute  literally.  Indeed,  it  may  be  surmised  that  these  were 
the  considerations  which  drove  the  court  in  Moore  v.  Reddel  ^'^ 
to  hold  decisively  that  the  statutory  remainder  was  to  "chil- 
dren. ' ' 

41  Doty  V.  Teller,  54  N.  J.  L.  163.  4g  Moore   v.   Eeddel,   259   111.    36; 

42  Zabriskie  v.  Wood,  23  N.  J.  Eichardson  v.  Van  Gundy,  271  111. 
Eq.  541;  Weart  v.  Cruscr,  49  N.  J.  476.  Compare  this  with  the  holding 
L.  475,  480.  that  a  conveyance  by  deed  to  A  and 

43  Cooper  V.  Cooper,  76  111.  57;  his  children,  "born  and  to  be 
Welliver  v.  Jones,  166  111.  80.  born,"   does  not   permit  after-born 

44  Welliver   v.  Jones,   166   111.   80.  children  to  take   any  interest,  post, 

45  Richardson  v.  Van   Gundy,  271  §§475,  476. 

111.  476;    Moore   v.  Eeddel,  259   111.  47  259  111.  ;!6,  44. 

36;  Kyner  v.  Boll,  182  111.  171. 

452 


Ch.  XVI]      REMAINDER   BY    THE   STATUTE   ON    ENTAILS  [§409 

In  Arkansas,"*^  and  Vermont,'*"  it  seems  clear  that  the  re- 
mainder under  the  statute  vests  in  such  issue  of  the  donee  in 
tail  as  are  his  heirs  under  the  statute  on  descent.  In  all  the 
cases  the  point  is  assumed,  no  other  view  being  suggested.  It 
is  hard  to  say  that  this  is  not  a  proper  result,  and  yet  there  are 
difficulties  with  it.  The  holding  is  precisely  one  of  those  which 
the  court  ought  to  have  justified  when  it  was  made,  so  as  to  put 
forever  at  rest  doubts  based  upon  very  plausible  reasoning.  Ac- 
cording to  the  language  of  the  statute  the  remainder  in  fee  is 
limited  "to  the  person  or  persons  whom  the  estate  tail  would, 
on  the  death  of  the  first  grantee,  devisee,  donee  in  tail,  first 
pass,  according  to  the  course  of  the  common  laiv."  It  is  clear 
that  the  descent  if  traced  literally  "according  to  the  course  of 
the  common  law,"  must  have  followed  such  of  Blackstone's 
canons ^^  as  are  applicable  to  lineal  descent,  viz.,  "the  male  issue 
shall  be  admitted  before  the  female."  "Where  there  are  two 
or  more  males  in  equal  degree,  the  eldest  only  shall  inherit,  but 
the  females  altogether."  "The  lineal  descendants,  in  infinitum, 
of  any  person  deceased  shall  represent  their  ancestor:  that  is, 
shall  stand  in  the  same  place  as  the  person  himself  would  have 
done  had  he  been  living."  Thus,  the  eldest  son  alone,  if  there 
were  one,  would  take  the  remainder  in  fee,  and  the  rule  of  primo- 
geniture would  have  survived  to  the  present  day  in  this  one 
case.  Such  a  conclusion  is  not  so  impossible  as  it  might  at  first 
seem.  It  was  in  fact  adopted  in  two  Missouri  cases.^^  In 
the  more  recent  one  the  court  said :  "That  under  this  statute,  by 
the  grant  in  the  deed,  to  Mary  A.  "Walker  and  the  heirs  of  her 
body,  she  took  only  a  life  estate,  is  beyond  dispute.  The  serious 
question  is,  to  whom  did  the  other  part,  the  remainder  in  fee 
simple  absolute,  go  ?  The  answer  of  the  statute  is,  to  the  persons 
to  whom  the  estate  tail  would  on  her  death  first  pass  according 
to  the  common  law,  by  virtue  of  the  grant.  This  grant  being 
of  a  fee  tail  general,  according  to  the  common  law,  its  course  by 
that  law  is  similar,  so  far  as  it  goes,  to  that  of  an  estate  in  fee 
simple  (Williams,  R.  P.  120,  17  Int.  Ed.),  and  as  at  the  date  of 

<8  Horsley    r.    Hilburn,    44    Ark.  si  Frame  v.  Humphreys,  164  Mo. 

458;    Myar   r.   Snow,   49   Ark.   135;  336;  Burris  v.  Page,  12  Mo.  358. 
Wilmans   v.  Robinson,   67   Ark.  517.  Observe  the  admission  of  our  Su- 

<9  Thompson   v.   Carl,  51  Vt.  408.  preme    Court    in    Moore    r.    Reddel, 

50  2    Bl.    Com.,    Ch.    14,    200-240;  259  111.36,44. 
4  Gray's  Cases  on  Prop.,  9. 

453 


§  409]  FUTURE   INTERESTS  [Ch.  XVI 

the  grant  there  were  living  sons  and  daughters  of  the  said  Mary 
A.  Walker,  of  whom  John  D.  Walker  was  the  eldest,  and  as  to 
him  the  estate  tail  would  first  pass  on  the  death  of  his  mother 
according  to  the  common  law  (I  Cooley's  Black.,  4  Ed.  bottom 
pp.  605  and  606),  to  him  the  remainder  in  fee  simple  absolute 
passed  under  the  statute  by  virtue  of  the  grant,     *     *     *."  52 

There  would  seem  to  be  only  two  possible  grounds  for  reach- 
ing a  different  result:  First,  that  a  modern  statute  changing 
the  common  law  mode  of  descent  had,  prior  to  the  statute  on 
entailments,  altered  the  course  of  descent  in  cases  of  estates 
tail  and  that  the  act  concerning  entails,  in  referring  to  "the 
course  of  the  common  law,"  really  indicated  the  common  law  as 
modified  by  the  modern  statute.  Second,  that  a  statute  of 
descent,  passed  subsequent  to  the  act  regarding  entails,  by  im- 
plication modified  it  so  that,  "according  to  the  course  of  the 
common  law,"  must  be  read  "according  to  the  statute  of 
descent. ' ' 

An  examination  of  the  statutory  history  of  Illinois  will  show 
how  difficult  it  is,  in  that  state  at  least,  to  sustain  either  of  the 
grounds  suggested. 

At  the  time  the  Act  of  1827  concerning  entails  was  passed, 
there  had  been  in  force  in  Illinois  as  a  territory  and  as  a  state 
since  1787,  a  statute  changing  the  common  law  course  of  lineal 
descent  so  that  children  and  descendants  of  a  deceased  child 
shared  in  equal  parts,  the  descendants  of  a  deceased  child  or 
grandchild  taking  the  share  of  their  deceased  parent  in  equal 

52  This  reasoning  evidently  pre-  grounds  upon  which  his  contention 
vailed  over  a  strong  prejudice  could  possibly  exist  in  this  case, 
against  the  result  which  it  entailed,  the  stress  of  work  forbids  that  we 
for  in  Eozier  v.  Graham,  146  Mo.  should  enter  upon  such  a  diseus- 
352,  at  page  360,  the  Court  had  sion.  While  it  is  somewhat  start- 
said  :  "It  might  prove  intei'esting  ling,  we  do  not  think  it  is  alto- 
to  examine  and  discuss  at  length  gether  new,  and  we  feel  justified 
the  exceedingly  ingenious  and  in  saying  that  however  plausible 
plausible  argument  of  the  able  the  theory  evolved  from  the  mere 
counsel  for  Mrs.  Mullen  that  our  words  of  the  statute,  no  such  con- 
statute  of  1835  [Mo.  E.  S.  1835,  struction  ever  has  been  given  that 
Act  of  Conveyances,  See.  5]  dock-  statute  in  this  State,  or  ever  will 
ing  entails  has  been  the  means  of  be.  There  are  no  mourners  for  the 
preserving  the  common  law  rule  of  doctrine  of  primo-geniture  in  this 
descent  of  primo-geniture,  but  hav-  State." 
ing     disposed     of     the     only     two 

454 


Ch.  XVI 1       REMAINDER  BY   THE   STATUTE   ON   ENTAILS 


[§409 


parts  among  them.^^  Did  these  acts  change  the  course  of  descent 
in  the  case  of  an  estate  tail?  If  so,  did  the  Act  of  1827  refer 
to  the  course  of  descent  as  changed  by  them  ? 

It  is  clear  that  the  first  statutes  of  descent  were  not  in  terms 
confined  in  their  application  to  estates  in  fee  simple,  for  they 
begin:  "That  the  estate  of  both  resident  and  non-resident  pro- 
prietors *  *  *  dying  intestate  shall  descend."  "Propri- 
etors" is  a  word  which  might  well  have  included  holders  of  an 
estate  tail.  An  examination,  however,  of  some  early  cases  in 
Massachusetts,^"*  Pennsylvania,^^  and  Maine,^^  will  seem  to  in- 
dicate a  strong  tendency  to  hold  that  the  modern  statutes  con- 
cerning descent,  even  when  they  are  not  in  terms  confined  to 
estates  in  fee  simple,^"  do  not  apply  to  estates  tail  so  that  the 
descent  there  still  continues  to  be  to  the  eldest  son,  etc.,  accord- 
ing to  the  course  of  the  common  law.^^  But,  from  a  careful 
examination  of  these  cases,  it  will  appear  that  the  results  reached 
were  influenced  by  a  long  period  of  recognition  of  estates  tail 
and  their  descent  according  to  the  common  law  ^'^  and  a  conse- 
quent disinclination  to  overrule,  by  implication  merely,  a  settled 


53  1  A.  &  D.  E.  E.  S.,  439;  also 
L.  1819,  p.  223  (1  A.  &  D.  R.  E.  S. 
446). 

54  Corbin  v.  Healy,  20  Pick. 
(Mass.)  514  (1838);  Wight  v. 
Thayer,  67  Mass.  284   (1854). 

55  Reinhart  v.  Lantz,  37  Pa.  St. 
488  (1860),  overruling  the  earlier 
case  of  Price  v.  Taylor,  4  Casey 
(Pa.)  95,  106;  28  Pa.  St.  95,  106; 
Sauder  v.  Morningstar,  1  Yeates 
Pa.  313  (1793),  is  no  authority  upon 
the  point  of  the  text  because  there 
the  statute  of  descent  (Act  of  1705) 
only  regulated  the  descent  of  lands 
where  the  father  is  seized  thereof, 
and  might  dispose  of  them  by  deed 
or  will. 

soRiggs  I'.  Sally,  15  Me.  408 
(1839). 

57  In  Corbin  v.  Healy,  supra,  the 
statute  of  descent  involved  (Mass. 
Laws  of  1780-1791,  p.  124,  Act  of 
March  9,  1784)  read:  "That  when 
any  person  shall  die  seized  of  lands. 


tenements  or  hereditaments,  not  by 
him  devised,  the  same  shall  descend 
in  equal  shares  to  and  among  his 
children,"  etc. 

In  Reinhart  v.  Lantz,  supra,  the 
statute  involved  (Session  Laws  of 
Pa.,  1832-3,  p.  315)  applied  to  "the 
real  and  personal  estate  of  a  de- 
cedent, whether  male  or  female,  re- 
maining after  payment  of  all  just 
debts  and  legal  charges,  which  shall 
not  have  been  sold  or  disposed  of 
by  will  or  limited  by  marriage  set- 
tlement. ' ' 

58  In  1  Leading  Cases  in  Ameri- 
can Law  of  Real  Property  (note 
by  Sharswood  and  Budd),  104. 

59  ' '  The  existence  and  incidents 
of  an  estate  tail  have  always  been 
recognized  in  this  Commonwealth, 
and  provision  made  for  an  easy 
mode  of  barring  them;  and  com- 
mon recoveries  to  bar  them  have 
been  in  frequent  use."  Per  Shaw, 
C.  J.,  in  Corbin  v.  Healy,  20  Pick. 


455 


§409]  FUTURE   INTERESTS  [Ch.  XVI 

rule  of  property."^  It  may  fairly  be  assumed,  however,  that  such 
considerations  never  could  have  influenced  the  courts  of  Illi- 
nois and  would  not  now  do  so.  We  may,  therefore,  assume  for 
the  purpose  of  the  present  discussion  that  the  supreme  court 
of  this  state  would  hold  that  the  statutes  of  descent  in  force 
prior  to  1827  did  apply  to  alter  the  course  of  descent  of  estates 
tail.61 

Then  we  reach  this  question:  Does  the  Act  of  1827,  in  de- 
claring that  the  remainder  shall  pass  "to  the  person  or  persons, 
whom  the  estate  tail  would,  on  the  death  of  the  first  grantee, 
devisee,  donee  in  tail,  first  pass,  according  to  the  course  of  the 
common  law"  mean  the  common  law  as  altered  by  previous 
statutes  then  in  force?  It  is  difficult  to  answer  this  question 
in  the  affirmative.  The  common  law  and  the  statutory  rules 
concerning  descent  were  radically  different.  The  latter  did 
away  with  the  former  and  superseded  them.  When,  therefore, 
a  new  act  was  passed  which  referred  in  terms  to  descent  "ac- 
cording to  the  course  of  the  common  law,"  the  common  law 
course  of  descent  would  seem  to  have  been  unequivocally  dis- 
tinguished and  pointed  out,  and  not  a  wholly  different  stat- 
utory mode.<52     This  was  the  position  taken  by  the  Missouri 

(Mass.)  514,  517  (1838).  In  Sau-  so  See  language  of  the  Court  in 
der  V.  Morningstar,  1  Yeates  (Pa.)  Price  v.  Taylor,  28  Pa.  St.  (4 
313  (1793),  counsel  who  were  argu-  Casey)  95,  106. 
ing  that  the  estate  tail  descended  to  ei  See  the  suggestion  of  Lowrie, 
all  the  sons  equally  were  stopped  J.,  in  Price  v.  Taylor,  28  Pa.  St.  (4 
by  the  Court.  "The  Court  observed  Casey)  95,  106. 
that  it  was  too  late  now  to  stir  02  it  might  be  urged  that  the  Act 
this  point  whatever  reason  there  of  1827  itself  furnishes  an  exam- 
might  have  been  for  it  in  the  first  pie  where  a  reference  to  the  com- 
instance.  The  invariable  opinion  mon  law  admittedly  includes  a  stat- 
of  lawyers  since  the  Act  of  1705  utory  amendment  of  the  common 
has  been,  that  lands  entailed  de-  law,  since,  while  referring  to  "cases 
scended  according  to  the  course  of  where  by  the  common  law  any  per- 
the  common  law,  and  it  has  been  un-  son  or  persons  miglit  hereafter  be- 
derstood  generally,  that  it  has  been  come  seized,  in  fee  tail,"  cases 
so  adjudged  in  early  times.  All  where  by  the  statute  de  donis  of 
the  common  recoveries  which  have  Edward  I,  any  person  is  seized  in. 
been  suffered  by  the  heirs  of  donees  fee  tail  are  meant.  But  a  fair  argu- 
in  tail  have  been  conformable  to  ment  can  hardly  be  drawn  from  this 
that  principle;  to  ansettle  so  many  because  the  result  was  reached  not 
titles  at  this  late  day  would  be  pro-  because  "common  law"  includes  a 
ductive  of  endless  confusion."  subsequent  statutory  amendment  of 

456 


Ch.  XVIJ       REMAINDER   BY    THE   STATUTE   ON    ENTAJI^  [  §  4lU 

court  in  the  recent  case  of  Frame  v.  Ilumphreys.^^  There  the 
court  said:  "Although  the  common  law  of  descents  was  never 
in  force  in  this  jurisdiction  (Terr.  Laws  of  Louisiana,  1807  Cap. 
39 ;  Terr.  Laws  of  Mo.  1815  Cap.  143 ;  R.  S.  1825,  p.  326 ;  R.  S. 
1835,  p.  222)  that  law  was,  as  we  have  seen,  preserved  in  the 
statute  of  conveyances,  not  as  a  law  of  descent,  but  to  the  ex- 
tent only  and  for  the  single  purpose  of  affording  a  rule  for  the 
determination  of  an  estate  tail  by  grant  or  devise  *  *  *."«•« 
It  is  difficult  to  say  that  the  statute  of  1829  ♦^^  concerning 
descents,  operated  in  any  way  to  alter  the  language  of  the  Act 
of  1827  concerning  entails.  If  it  did  so  it  must  be  by  implica- 
tion merely.  But  there  is  no  ground  for  any  such  implication 
since  the  Act  of  1827  deals  completely  with  the  subject  of  en- 
tails and  the  subsequent  statute  concerning  descent  does  not  in 
tenns,  nor,  indeed,  need  it  be  regarded  as  in  the  slightest  de- 
gree inconsistent  with  the  Act  of  1827.  Subsequent  events  re- 
pel any  inference  that  these  two  acts  are  at  all  inconsistent 
with  each  other,  since  they  have  been  re-enacted  in  their  orig- 
inal form  in  the  subsequent  revisions  of  1845,^®  and  1874.^^ 

TITLE  II. 
REMAINDERS  AFTER  THE  ESTATE  TAIL. 

§  410.  Before  the  statutory  remainder  vests  by  the  birth  of 
children  of  the  donee  in  tail:  A  remainder  limited  after  the 
estate  tail  is  not  destroyed  by  operation  of  the  statute,  since 
the  fee  in  remainder  created  by  the  statute  has  not  vested  and 

the    common   law,    but   because    the  ' '  shall  go  and  be  vested  in  the  chil- 
statute     in     terms     applied     to     es-  dren    of    such    grantee    or    devisee 
tates  tail  and  at  common  law  there  equally  to  be  divided  among  them," 
were  none  such  at  all.  etc.    But  by  the  Act  of  1866   (ante, 
«3  164  Mo.  336.  S402,    note    6,    this    "last    vestige 
c*  The    Court    adds    that    by    the  of    the    system    of    feudal    tenures ' ' 
Revision  of  1845  "this  last  vestige  was    evidently    restored    by    the    re- 
of  the  system  of  feudal  tenures  was  enactment   of    the   Act    of    182.5   re- 
swept     from     our     statute     book."  garding  entails.     (Frame  r.  Humph- 
That    is    true    because    the    Act    of  rey«,   164   Mo.  336.) 
1845    referred    to    must    have    been  "3  Laws   1829,  p.   191;    1   A.  &  D. 
Mo.  R.  S.  1845,  p.  116,  Sec.  5   (Act  R.  E.  S.,  p.  464,  §46. 
regulating    conveyances),    where    it  <""' R.  S.  1845,  p.  534,  §46. 
was    provided    that    the    remainder  «' R.  S.  1874,  p.  417,  Ch.  39.  $1. 

457 


§  411]  FUTURE  INTERESTS  [Ch.  XVI 

may  not  vest.*'^  If  the  interest  after  the  estate  tail  be  limited 
to  take  effect  after  a  definite  failure  of  issue  of  the  donee  in 
tail,  it  is  clearly  not  void  for  remoteness.*''^  It  would,  however, 
be  a  contingent  remainder  after  the  statutory  life  estate  and 
subject  to  the  rule  of  destruetibility  of  contingent  remainders.'^® 
Even  though  the  interest  after  the  estate  tail  were  limited  to 
take  effect  upon  an  indefinite  failure  of  issue  of  the  donee  in 
tail,'^  it  would  be  valid  because  it  would  be  a  contingent  re- 
mainder and  subject  to  the  rule  of  destruetibility,  which  re- 
quires it  to  take  effect  before  or  at  the  termination  of  the 
statutory*  life  estate  or  fail  entirely.  It  could  not,  therefore, 
be  void  for  remoteness. "^^  Furthermore,  the  remainder  is  lim- 
ited in  two  events :  One,  if  the  statutory  life  tenant  dies  with- 
out having  had  any  issue ;  and  the  other  if  the  life  tenant  hav- 
ing had  issue,  such  issue  fail  in  any  generation.  In  the  first 
event  the  future  interest  is  a  contingent  remainder  and  not  too 
remote.  In  the  second,  it  is  a  shifting  executory  interest  and 
void  for  remoteness.  The  two  events  are  not  separated  by  any 
language  of  the  instrument  creating  the  estates,  but  under  the 
rule  of  Doe  d.  Evers  v.  ChallisP  they  are  separable  by  opera- 
tion of  law  and  if  the  event  occurs  which  enables  the  future 
interest  to  take  effect  as  a  vested  remainder,  it  may  do  so. 

§  411.  After  the  statutory  remainder  has  vested  by  the 
birth  of  a  child  of  the  donee  in  tail:  Recently  our  Supreme 
Court  said  ^4  '<The  statute  [on  Entails]  operated  to  destroy 
the  entail  supporting  the  remainder,  and  necessarily  destroyed 
the  remainder  expectant  on  the  estate  tail.  The  statute  operat- 
ing upon  the  estate  tail  to  turn  the  entail  into  a  fee  simple,  all 

68  Metzen  v.  Schopp,  202  111.  275.       cannot    apply    where    they    are    all 

69  7(f.  equitable:  In  re  Bence,  [1891]  3  Ch. 
70 Ante,  ^S18.  242;  In  re  Hancock,  [1901]  1  Ch. 
71  Posi,' §  548.  482;  [1902]  A.  C.  14.  See  Post, 
■^2  Post,  U  Q87  et  seq.  §689. 

73  18  Q.  B.  224,  231;   7  H.  L.  C.  t4  Kolmer  v.  Miles,  20  111.  20,  26. 

531;    5  Gray's  Cases,  2nd  ed.  582;  In  Blair  v.  Vanblarcum,  70  111.  290, 

Kales'    Cases   on   Future   Interests,  294,  the  court  refused  to  deal  with 

1059;  Gray,  Rule  against  Perpetui-  the  same  point  because  the  contin- 

ties,  3rd  ed.  §§  340-340a.     The  rea-  gency  which  would  make  its  consid- 

soning    of    this    case    only    applies  eration  necessary  had  not  arisen, 
where  the  limitations  arc  legal.     It  . 

458 


CH.  XVIJ       RExMAINDEH   BY    THE    STATUTE   ON    ENTAILS  [§4H 

subsequent  limitations  fell."'^  If  "die  without  issue"  which 
introduces  the  limitation  after  the  estate  tail  means  "die  with- 
out ever  having  had  issue,"  the  gift  over  can,  of  course,  never 
take  effect  when  issue  have  been  born.'"  If  "die  without  issue" 
means  an  indefinite  failure  of  issue,"'^  the  gift  over  is  void  for 
remoteness.  Whether  the  gift  over  is  on  a  definite  or  indefi- 
nite failure  of  issue,  the  question  arises  whether  at  once  on  the 
birth  of  issue  to  the  statutory  life  tenant  the  gift  over  is  not 
destroyed  by  the  application  of  the  common  law  rule  that  the 
future  interest  after  a  particular  estate  of  freehold,  which  may 
take  effect  as  a  remainder,  shall  never  be  permitted  to  take 
effect  in  any  other  way,"^ 

"See  Wilkes  v.  Lion,  2  Cow.  (N.  -■!  Post,  §549. 

Y.)  333.  '8  For   a    discussion    of   this    rule 

76  Winchell   v.    Winchell,    259    111.  and  its  possible  application,  see  a?!<e, 

471.     For    the    circumstances    under  §  105. 
which  such  a  construction  is  proper, 
see  post,  §  540. 


459 


CHAPTER  XVII. 
RULE  IN  SHELLEY'S  CASE.i 

TITLE  I. 
STATEMENT  OF  THE  RULE  AND  ITS  APPLICATION. 

Topic  1. 

In  General, 

§412.     The  Rule  in  force  in  Illinois  stated:      The  Eule  in 
Shelley's  Case  is  in  force  in  this  state. ^   This  Rule  is  not  a  mod- 


1  The  origin  and  history  of  the 
Eule  have  been  dealt  with  ante,  §§ 
34,  35.  In  Baker  v.  Scott,  62  111. 
86,  95,  96,  our  Supreme  Court 
touched  upon  some  of  the  sugges- 
tions which  have  been  made  to  ex- 
plain the  existence  of  the  Rule.  See 
also,  post,  §§  423,  424.  In  Akers  v. 
Clark,  184  111.  136,  137,  the  court 
observed  (quoting  from  Washburn 
on  Real  Property,  Vol.  2,  p.  242) 
that  the  limitations  to  which  the 
Rule  applied  would,  without  the  ap- 
plication of  the  rule,  give  a  life  es- 
tate to  A  and  a  contingent  remain- 
der to  A 's  heirs.  This  actually  hap- 
pened in  Aetna  Life  Ins.  Co.  v.  Hop- 
pin,  249  111.  406;  214  Fed.  928; 
Benson  v.  Tanner,  276  111.  594. 

2  Baker  v.  Scott,  62  111.  86;  Bris- 
lain  V.  Wilson,  63  lU.  173;  Riggin 
V.  Love,  72  111.  553,  556,  semble 
Ryan  v.  Allen,  120  111.  648;  Car 
penter  v.  Van  Olinder,  127  111.  42 
Hageraan  v.  Hageman,  129  111.  164 
Fowler  v.  Black,  136  111.  363;  Van 
gieson  v.  Henderson,  150  111.  119 
Davis  V.  Sturgeon,  198  111.  520 
Deemer   v.   Kessinger,   206   111.    57 


McFall  V.  Kirkpatrick,  236  111.  281; 
Lord  V.  Comstock,  240  111.  492 ;  Wal- 
lace V.  FoxweU,  250  111.  616;  Win- 
ter V.  Dibble,  251  111.  200 ;  Smith  v. 
Smith,  254  111.  488;  Nowlan  v.  Now- 
lan,  272  111.  526;  Greenough  v. 
Greenough,  284  111.  416.  In  all  the 
above  cases  the  limitations  were 
substantially,  to  A  for  life,  remain- 
der to  A's  heirs,  and  the  rule  was 
applied,  the  ultimate  result  being 
that  A  had  a  fee  simple. 

In  Bigelow  v.  Cady,  171  111.  229, 
the  heirs  of  the  testator  filed  a  bill 
for  partition.  A  demurrer  by  the 
administrator  with  the  will  annexed 
(on  the  ground  of  insufficient  par- 
ties, presumably)  was  overruled. 
This  was  affirmed  upon  the  ground 
that  the  complainants  had  the  whole 
interest.  Professor  Gray  suggested 
to  the  writer  that  possibly  this 
might  be  explained  upon  the  ground 
that,  by  the  application  of  the  Rule 
in  Shelley's  Case,  the  complainants 
were  the  only  persons  interested. 
(See  post,  §  659,  for  ground  upon 
which  the  court  placed  its  decision.) 


460 


Cn.  XVII]  RULE  IN  Shelley's  case  [§414 

ern  rule  founded  u})oii  the  ancient  one,  but  it  is  the  ancient 
feudal  rule  itself  as  adopted  and  developed  by  the  English  courts. 
Our  Supreme  Court  has  recognized  the  Kule  as  given  by  Pres- 
ton ^  and  Jarman.'*  Hayes' ^  statement  of  it  may  well  be  added 
as  being  particularly  accurate  and  complete:  "The  Rule  in 
Shelley's  Case  says,  in  substance,  that  if  an  estate  of  freehold  be 
limited  to  A,  v^^ith  remainder  to  his  heirs,  general  or  special,  the 
remainder,  although  importing  an  independent  gift  to  the  heirs, 
as  original  takers,  shall  confer  the  inheritance  on  A,  the  an- 
cestor."" 

§  413.  Where  the  life  estate  and  remainder  differ  in  quality 
(one  being-  legal  and  the  other  equitable)  the  Rule  does  not 
apply:  "The  rule,"  says  Hayes,"  "assumes  and  founds  itself 
upon  two  pre-existing  circumstances, — a  freehold  in  the  an- 
cestor, and  a  remainder  to  the  heirs.  The  absence  of  either  of 
these  ingredients  repels  the  application  of  the  rule;  their  con- 
currence irresistibly^  invites  it."  The  fact  that  a  remainder  is 
required  admits  the  application  of  the  Rule  where  the  estates  are 
all  legal.  It  excludes  its  application  in  the  case  of  limitations 
differing  in  (juality,  the  one  being  legal  and  the  other  equitable.* 

§  414.  Where  the  remainder  is  not  to  "heirs,"  but  to  "chil- 
dren" the  Rule  does  not  apply:  The  fact  that  a  remainder  to 
heirs  is  required  excludes  the  application  of  the  Rule  in  the  case 
where  the  remainder  is,  to  quote  again  from  Hayes,"  "to  sons, 
children,  or  other  objects,  to  take,  either  as  individuals  or  as  a 
class,  under  what  is  termed  a  descriptio  personae,  as  distin- 
guished from  a  limitation  embracing  the  line  of  inheritable  suc- 
cession."   Whether  or  not  the  second  limitation  is  a  remainder 

3  Baker  v.  Scott,  62  111.  86  at  p.  expositions  of  the  Rule  see  Bails  v. 
90,  91;  Brislain  v.  Wilson,  63  111.  Davis,  241  111.  536,  539,  540,  and 
173,  citing  1  Preston  on  Estates,  Winter  v.  Dibble,  251  111.  200,  221. 
264.  7  1    Hayes   on    Conveyancing,   5th 

4  Lehndorf  v.   Cope,   122  111.   317  cd.  542. 

to  331;  citing  Jarman  on  Wills,  5th  »  Baker   v.    Scott,    62    111.   86,   93- 

ed.  332.  94,  scmble;  Ryan  v.  Allen,  120  111. 

5  1  Hayes  on  Conveyancing,  5th  648,  653,  semble ;  Glover  v.  Condell, 
ed.  542.  163   111.    566,    588,   semhU ;   Harvey 

c  The  scheme  of  this  chapter  and  r.    Ballard,    252    111.    57 ;    Smith    r. 

much   of   the  substance   of   the   dif-  Smith,  254  111.  488,  493,  scmble. 
ferent  sections  is  founded  upon  the  ^  1    Hayes   on    Conveyancing,   5th 

exposition  in   1   Hayes'  Conveyanc-  ed.  543. 
ing  5th  ed.  542   et  seq.     For  other 

461 


§415] 


FUTURE   INTERESTS 


[Ch.   XVII 


to  the  "'heirs''  as  distinguished  from  "sons  or  children"  is 
purely  a  question  of  the  construction  of  the  instrument  accord- 
ing to  proper  rules  and  principles  of  interpretation.  Even  the 
word  "children"  aided  by  the  context  may  mean  "heirs. "  ^"^ 
It  must,  however,  be  an  unusual  case  where  this  can  happen. 
It  is  noticeable  that,  where  our  Supreme  Court  has  been  urged 
to  give  such  a  construction  to  the  word  "children,"  it  has 
usually  refused  to  do  so.^^  On  the  other  hand,  the  word  "heirs," 
restrained  by  the  context,  may  have  only  the  force  of  the  word 
"children,"  in  which  case,  of  course,  the  Rule  has  no  appli- 
cation.^2  ^his  again  is  the  unusual  and  exceptional  result, 
where  the  word  "heirs"  is  used.  There  must  be  something  on 
the  face  of  the  instrument  to  indicate  with  a  sufficient  degree 
of  plainness  that  "children"  is  meant. ^^ 

§  415.  Where  the  grant  or  devise  is  "to  A  and  his  heirs" 
the  Rule  has  no  application :  Here  a  fee  is  created  in  A  by  the 
formula  of  words  required  by  the  feudal  land  law.^^  The  Rnle 
in  Slielley's  Case  has  nothing  to  do  with  the  result.^"'  There  is 
no  life  estate  and  no  remainder  to  the  life  tenant's  heirs.  Of 
course,  if  the  contention  is  being  put  forward  that  A  has  only 


10  Dick  V.  Eicker,  222  111.  413 
(remainder  to  children  of  life  ten- 
ant's body  in  fee  tail). 

iiBeacroft  v.  Strawn,  67  111.  28; 
Griswold  v.  Hicks,  132  111.  494; 
Sehaefer  v.  Schaefer,  141  111.  337; 
Hanes  v.  Central  111.  Utilities  Co., 
262  111.  86. 

12  Morris  v.  Phillips,  287  111.  633. 

Our  Supreme  Court,  in  Butler  v. 
Huestis,  68  111.  594,  goes  very  far 
in  declaring  that  "heirs  of  the 
body"  means  "children";  the 
grounds  being  that  the  words  were 
used  in  the  exercise  of  a  power 
and  that  the  remainder  was  lim- 
ited "at  and  after"  the  life  ten- 
ant 's   decease. 

Beslay  v.  Engel,  107  111.  182  is, 
according  to  the  subsequent  case 
of  Carpenter  v.  Van  Olinder,  127 
111.  42,  51,  to  be  explained  on  the 
ground  that  "heirs"  must  there 
have  been  construed  "children." 


For  other  instances  where  ' '  heirs ' ' 
is  construed  children,  see  post,  §  574 
note. 

13  Cases  where  "heirs"  is  used 
and  the  court  holds  rigidly  to  its 
technical  meaning:  Fowler  v.  Black, 
136  111.  363,  374-375;  Davis  v.  Stur- 
geon, 198  111.  520,  522;  Vangieson 
V.  Henderson,  150  111.  119,  121; 
Hageman  v.  Hageman,  129  111.  164, 
168;  Carpenter  v.  Van  Olinder,  127 
111.  42,  53;  Ryan  v.  Allen,  120  111. 
648,  654;  Deemer  v.  Kessinger,  206 
111.  57;  Crabtree  v.  Dwyer,  257  111. 
101.  Observe  also  the  expressions 
of  the  court  in  Wolfer  v.  Hemmer, 
144  111.  554,  560;  Ewing  v.  Barnes, 
156  111.  61,  67;  Silva  v.  Hopkinson, 
158  111.  386,  389. 

I*  Ante,  §§  153,  158. 

15  Johnson  v.  Buck,  220  111.  226; 
Morton  v.  Babb,  251  111.  488; 
Forbes  v.  Forbes,  261   111.  424. 


462 


Ch.  XVII]  RULE  IN  Shelley's  case  [§417 

a  life  estate  with  a  remainder  to  his  heirs,  it  iniglit  be  replied 
that,  assuming  such  a  situation,  the  Rule  in  Shelley's  Case  would 
give  A  the  fee.'"  In  at  least  three  eases,'"  however,  our  Supreme 
Court  appears  to  have  applied  the  Rule  in  Shelley's  Case  to  give 
A  the  fee  wliere  the  eonveyance  ran  "to  A  and  his  heirs."  '**  The 
danger  of  introducing  an  issue  of  the  application  of  the  Rule  in 
Shelley's  Case  in  this  class  of  cases  appears  from  Risstnan  v. 
Wierth.^^  In  that  case  there  was  a  devise  to  the  wife  "and 
to  lier  heirs  and  assigns  forever,"  with  subsequent  language  in- 
dicating that  the  wife  was  to  have  only  a  life  estate.  Then  there 
was  a  clearly  expressed  gift  over  to  the  "above  named  persons." 
The  court  having  held  that  the  Rule  in  Shelley's  Case  applied 
to  give  the  wife  a  fee,  affirmed  a  decree  which  gave  the  prop- 
erty to  the  wife's  heirs  as  against  the  named  devisees.  The  Rule 
in  Shelley's  Case  had  nothing  to  do  with  the  limitations  unless 
they  could  be  construed  as  giving  the  wife  a  life  estate  with  a 
remainder  to  her  heirs.^^  But  whatever  view  be  taken  of  the 
wife's  estate  there  was  a  clear  gift  over  to  the  named  devisees 
upon  her  death  which  was  good  as  a  remainder  after  a  life  estate 
or  as  a  shifting  executory  devise. 

§  416.  It  does  not,  however,  prevent  the  application  of  the 
Rule  that  other  estates  or  interests  are  inserted  between  the 
life  estate  and  the  remainder  to  heirs:  This  is  clear  from  a 
number  of  cases.^i  What  the  operation  of  the  Rule  is  in  such 
cases  is  considered,  post,  §  440. 

§  417.  The  Rule  applies  though  the  life  tenant  takes  a  part 
interest  in  the  estate  for  life  and  a  remainder  in  the  whole,^^ 
or  the  entire  interest  for  life  and  a  part  interest  in  the  re- 

16  Baker    v.     Scott,     62     111.     86;  and  her  heirs  for  life,  the  court  eon- 

Lehndorf    v.    Cope,    122    111.    317;  strued   it    as   creating   a    life   estate 

Wolfer    V.    Hemmer,    144    111.    554,  and   not   as   giving   A  a   life   estate 

559.  with  a  remainder  to  her  heirs. 

i7Ewing    V.    Banes,    156   111.    61;  ^i  McFall  v.  Kirkpatrick,  2:56  111. 
Silva   t'.    Hopkinson,    158    111.    386;  281;   Hanes  v.  Central  111.  Utilities 
Davis  i;.  Sturgeon,  198  111.  520.  Co.,  262  111.  86;  Carpenter  v.  Hub- 
is  See    the    comments    of   Leasing  hard,  263  111.  571. 
Rosenthal,   Esq.,   in   28   Chicago  Lc-  22  Bails    v.    Davis,    241    111.    536; 
gal  News,  p.  258.  Wallace    v.    Foxwell,    250    111.    616; 
10  220  111.  181.  Fuller  r.  Chamier,  L.  R.  2  Eq.  682; 
20  In    Miller    f.    Mowers,    227    111.  Hess  r.  Lakin,  7  Oh.  Dec.  300 ;  Kep- 
392,  403,  where  the  deed   ran   to   A  ler   v.   Reeves,    7   Oh.    Dec.   Reprint, 

463 


§  418]  FUTURE  INTERESTS  [Ch,   XVII 

maiiider:23      What  the  operation  of  the  Eule  in  such  cases  is 
will  be  discussed,  post,  §  440, 

Topic    2. 

Where  the  Limitations  Are  to  A  for  Life  Remainder  "to 
THE  Heirs  op  the  Body"  of  A. 

§  418.    There  have  been  dicta  and  decisions  that  the  Rule 
does  not  apply  to  such  limitations:     In  Baker  v.  Scott, -"^  the 
court  said:    "As  by  section  6  of  the  same  chapter  the  rule  does 
not  operate  upon  estates  tail,  as  it  declares,  contrary  to  the  Rule 
in  Shelley's  Case,  that  the  first  devisee  or  grantee  of  an  estate 
tail  shall  take  only  for  life  and  the  remainder  to  pass  in  fee  to 
the  person  or  persons  to  whom  the  estate  tail  would,  by  common 
law,  next  pass  after  the  death  of  the  first  grantee  or  devisee,  the 
inference  is,  no  change  was  intended  to  be  made  in  the  rule 
where  by  the  deed  or  will  the  remainder  is  limited  in  fee. ' '    In 
Butler  V.  Huestis,^''  the  court  said:    "It  is  apparent,  therefore, 
the  estate  devised  [by  the  will  involved  in  Baker  v.  Scott,  62  111. 
86]  was  not  an  estate  tail.    It  was  simply  a  limitation  of  the  fee 
to  her  heirs,  and  hence  the  Rule  in  Shelley's  Case  could  be  ap- 
plied.   But  not  so  in  the  case  at  bar,  for  here  the  estate  is  devised 
in  tail.    The  statute  in  this  state  has  saved  the  entail  to  the  first 
degree.    It  is  palpable,  therefore,  so  far  as  estates-tail  are  con- 
cerned, the  Rule  in  Shelley's  Case  has  leen  repealed  hy  the  6th 
section  of  the  Conveyance  Act."     In  Griswold  v.  Hicks,-^  the 
limitations  involved  were  to  the  children  of  the  grantor  "and  the 
heirs  of  their  bodies.     *     *     *     Meaning  and  intending  by  this 
conveyance  to  convey  to  my  said  children  the  use  and  control  of 
said  real  estate  during  their  natural  lives,  and  at  their  death  to 
go  to  their  children ;  should  they  die  without  issue,  to  their  legal 
representatives."    The  habendum  was  "to  the  only  proper  use, 
benefit  and  behoof  of  the  said  party  of  the  second  part,  their 
heirs  and  assigns  forever."     It  was  held  that  a  life  estate  was 
given  to  the  children,  with  a  remainder  in  fee  to  their  children. 
The   special   context  here  caused  "heirs"   and   "heirs  of  the 

.34 ;     BuUard     v.     Goffe,     20     Pick.  -•»  62  111.  86,  98. 

(Mass.)    252;    Fearne,   Cont.    Bern.  25  68  111.594,599. 

;J6,  63,  310.  -"  132  111.   494,   501. 
23  Ward  V.  Butler,  239  111.  462. 

464 


Ch.    XVII]  RULE  IN   SHELLEY'S   CASE  [§418 

body"  to  mean  children.     The  court,  however,  said:     "If  the 
word  'heirs,'  when  used  the  second  time  in  the  deed  in  the 
granting  clause,  can  with  certainty  be  said  to  mean,  'heirs  of 
their   bodies,'   as   expressly   stated   immediately    following   the 
names  of  the  grantees,  then  tJie  Rule  in  Shelley's  Case,  as  at  com- 
mon law,  would  have  no  application,  our  statute  expressly  provid- 
ing in  suih  case  that  he  who  would  hy  the  common  law  have  taken 
a  fee  tail,  shall  become  seized  for  his  natural  life  only,  and  the 
heirs  of  his  body,  tenants  in  tail  according  to  the  common  law, 
take  the  fee."     In  McCamphell  r.  Mason;-"^  the  limitations  in- 
volved were  to  the  parties  of  the  second  part  ^or  life  "and  to 
the  issue,  or  heirs  of  the  bodies  respectively,  of  said  parties  of 
the  second  part  in  fee  simple,"  with  a  gift  over  if  any  of  the 
parties  of  the  second  part  died  without  leaving  issue  or  heirs 
of  the  body,  then  his  portion  to  go  to  the  surviving  party  or 
parties  of  the  second  part  respectively  for  life,  "and  then  to 
the  issue  or  heirs  of  the  body  of  such  survivor  or  survivors  in 
fee  simple,"  with  a  gift  over  if  all  the  parties  of  the  second 
part  died  -without  leaving  issue  or  heirs  of  their  bodies,  "to 
the  heirs  of  the  said  party  of  the  first  part."    It  was  assumed 
without  argument  that  the  Rule  in  Shelley's  Case  did  not  apply 
and  that  an  estate  tail  was  therefore  not  created  and  that  the 
remainder  in  fee  to  the  heirs  of  the  bodies  in  fee  simple  was 
a  contingent  remainder.     This  Avas  the  actual  holding  of  the 
case  and  regarded  as  necessai';^'  not  only  to  support  the  validity 
of  the  ultimate  gift  and  avoid  the  objection  that  a  fee  on  a  fee 
was  being  created  by  deed,  but  also  in  order  that  the  contingent 
remaindermen  might  be  bound  by  decree  by  representation,  to 
which   they  were  not  made  parties.     The  court  said:     "Such 
construction,  we  think,  is  plain,  viz.,  that  the  persons  who  were 
to  take  the  remainder  on  the  death  of  either  of  the  life  tenants 
was  left  dubious  and  uncertain,  so  that  until  such  death,  it  is 
impossible  to  ascertain  the  persons  to  whom  the  remainder  will 
go.    If  at  the  death  of  a  life  tenant,  he  or  she  has  issue  or  heirs 
of  his  or  her  body  surviving,  it  goes  to  such  issue,  but  if  not,  it 
goes  to  the  surviving  life  tenants  for  their  lives,  with  remainder 
in  fee  to  their  issue  or  the  heirs  of  their  bodies.    It  thus  seems 
to  be  plain  that  the  remainder  granted  to  the  gi'antor's  grand- 
children, so  long  as  the  parent  is  survi\ing,  is  contingent,  and 

■i-  151  111.  500,  510. 

Kales  Fut.  Int.— 30  455 


§  418]  FUTURE   INTERESTS  [Ch.    XVII 

that  it  could  only  become  vested  upon  the  death  of  tlie  parent 
leaving  surviving  children  or  descendants."  After  the  pre- 
vious dicta  and  decisions  this  would  seem  to  rest  naturally  upon 
the  ground  that  the  Rule  in  Shelley's  Case  was  abolished  so  far 
as  it  applied  at  common  law.  where  the  remainder  was  to  the 
"heirs  of  the  body"  of  the  life  tenant.-^  In  Dick  v.  Bicker, ^^ 
the  deed  ran  to  Eliza  and  the  children  of  her  body,  to  have  and 
to  hold  to  Eliza  for  life  and  then  to  the  children  of  her  body  in 
fee  tail.  This  was  held  to  create  a  fee  tail,  but  not  because  the 
Rule  in  Shelley's  Case  applied.  The  court  said:  "It  has  been 
held  by  this  court  that  the  Rule  in  the  Shelley  Case  did  not  ap- 
ply to  an  estate  tail  in  this  State  for  the  reason  that  our  statute 
had  provided  to  the  contrary."  In  Aetna  Life  Insurance  Co.  v. 
Hoppin,^^  the  Illinois  Supreme  Court  had  two  grounds  for  hold- 
ing that  the  Rule  in  Shelley's  Case  did  not  apply.  One  was  that 
the  words  "heirs  of  the  body"  were  used  as  words  of  purchase 
by  reason  of  the  superadded  words  of  limitation,  "their  heirs 
and  assigns."  The  second  reason,  Avhieh  the  Supreme  Court  as 
a  matter  of  fact  put  first,  was  that  the  Rule  in  Shelley's  Case 
would  never  apply  where  the  remainder  was  to  the  "heirs  of 
the  body"  of  the  life  tenant,  for  the  reason  that  the  Rnle  in 
Shelley's  Case  had  been  abolished  by  the  indirect  effect  of  the 
Statute  on  Entails.  This  meant  that  in  no  case  of  a  remainder 
to  the  "heirs  of  the  body"  of  the  life  tenant  would  the  Rule  in 
Shelley's  Case  apply,  even  though  there  were  no  superadded 
words  of  limitation  at  all.  This  position  was  made  very  clear 
by  Mr.' Justice  Dunn,  speaking  for  the  court:  "The  appellees 
have  cited  section  6  of  the  Conveyance  Act  as  decisive  of  this 
ease.  This  section  aholished  estates  tail,  arid  with  them  the  Rule 
in  Shelley's  Case  as  applied  to  such  estates.  *  *  *  That 
Rule  applies  in  this  state  only  to  fees  simple.  Under  the  opera- 
tion of  the  Rule  where  in  force  as  to  estates  tail,  a  conveyance 
to  one  for  life  with  remainder  to  the  heirs  of  his  body  is  the 
same  as  a  conveyance  to  one  and  the  heirs  of  his  body,  and  the 

28  In  recent  cases  where  the  limi-  Henderson  v.  Harness,  176  111.  302; 

tations  were  substantially  to  A  for  Welch  v.  Welch,  183  111.  237;  Lan- 

life  with  remainder  to  the  heirs  of  caster    v.    Lancaster,    187    111.  540. 

the  body  of  A,  it  was  assumed  by  See  also  Hall  v.  Hankey,  174  Fed. 

the  court  that  the  limitations  stood  139. 

as  expressed,  the  Rule  in  Shelley's  29  222  111.  413,  420. 

Case     not    even    being    mentioned:  ^n  249  111.  406,  411 ;  214  Fed.  928. 

466 


Cii.  XVIIJ  RULE  IN  Shelley's  case  [§418 

first  taker  has  an  estate  tail,  wliich  is  an  estate  of  inheritance. 
In  this  state,  however,  where  the  Rule  is  not  in  force  as  to  estates 
tail,  the  conveyance  operates  according  to  its  terms,  and  the  first 
taker  has  a  life  estate,  only.  Section  6  lias  no  application  to  this 
ease,  because  it  refers  only  to  'cases  where,  by  the  common  law, 
any  person  or  persons  might  hereafter  become  seized  in  fee  tail,' 
etc.,  and  this  is  not  such  a  case."' 

In  Cooper  v.  Cooper,^^  there  was  nothing  inconsistent  with 
these  dicta  and  decisions.  In  that  case  one  of  the  deeds  involved 
seems  to  have  created  a  life  estate  in  William  Cooper  and  a  life 
estate  in  his  wife,  and  then  a  remainder  to  the  heirs  of  the  body 
of  William  Cooper  "in  fee  simple,  forever,  and  to  their  heirs 
and  assigns."  One  expression  of  the  court  seems  to  indicate 
that  these  limitations  "under  our  statute"  conveyed  a  remain- 
der in  fee  simple  absolute  to  the  heirs  of  the  body  of  William 
Cooper.  It  is  hard  to  tell  whether  this  means  "under  the  stat- 
ute providing  that  a  fee  simple  may  be  limited  without  words 
of  limitation,"  or  whether  it  means  that  the  Statute  on  Entails 
applies.  In  any  event,  it  is  entirely  immaterial  in  the  case  be- 
cause William  Cooper  had  died,  the  heirs  of  his  body  had  been 
ascertained,  and  their  remainder  had  vested,  and  there  was  no 
question  whatever  which  would  depend  upon  whether  the  re- 
mainder was  created  by  the  language  used  or  by  the  Statute 
on  Entails.  There  is  nothing  in  this  case,  therefore,  to  indicate 
that  the  Rule  in  Shelley's  Case  applied  where  the  remainder  was 
limited  to  the  "heirs  of  the  body"  of  the  life  tenant.  Nor  is 
there  anything  in  Voris  v.  Sloan,^^  to  indicate  that  the  Rule  in 
Shelley's  Case  applies  where  the  remainder  is  to  the  "heirs  of 
the  body"  of  the  life  tenant.  In  that  case  the  limitations  were 
to  Francis  and  Samuel  Voris  as  trustees,  in  trust  for  "the  use 
and  behoof  solely  of  the  said  Christiana  Morton  and  the  heirs 
of  her  body  forever;  and  upon  the  decease  of  the  said  parties 
of  the  second  part,  then  the  legal  title  to  the  said  premises  is 
to  be  and  remain  in  the  said  Christiana  ]\Iorton  during  her  nat- 
ural life,  with  a  remainder  to  the  heirs  of  her  ])ody ;  and  in 
case  she  should  die  without  issue,  then,  in  that  case,  the  legal 
title  to  revert  to  the  said  party  of  the  first  part  or  his  heirs." 
These  limitations  were  taken  as  if  they  created  an  active  trust, 
although  as  the  statement  goes,  the  trust  would  seem  to  be  pas- 

31  76  111.  57,  61.  35  68  111.  588. 

467 


§  418]  FUTURE   INTERESTS  [Ch.    XVII 

sive  and  executed  bj'  the  Statute  of  Uses.  Mrs.  Sloan,  as  the  life 
tenant  and  as  the  guardian  for  her  children,  tiled  a  bill  to  have 
the  property  sold.  The  surviving  trustee  was  the  only  party 
defendant.  The  sale  was  ordered  and  it  was  decreed  that  out 
of  the  proceeds  Mrs.  Sloan  should  receive  the  value  of  her  life 
estate  and  hold  the  balance  as  guardian  for  her  children.  This 
was  afiSrmed  except  that  it  was  held  that  on  the  death  of  two 
children  already  deceased,  their  shares  descended  to  their  mother 
in  part,  who  was  entitled  on  that  ground  to  a  portion  of  the 
principal.  This  could  only  be  supported  on  the  theory  that  the 
children  took  absolute  indefeasible  interests  when  born.  The 
court  received  no  aid  from  any  counsel  opposed  to  the  interests 
of  Mrs.  Sloan,  the  life  tenant.  No  basis  upon  which  the  children 
took  an  absolute  and  indefeasible  fee  on  birth  is  directly  stated 
by  the  court.  The  clearest  ground  upon  which  this  assumption 
was  made  is  that  the  gift  over  ' '  in  case  the  life  tenant  should  die 
without  issue,"  by  reference  caused  "heirs  of  the  body"  to 
mean  "issue."  The  result  of  this  would  be  that  each  issue  on 
birth  took  a  vested  and  indefeasible  interest,  subject  only  to 
open  and  let  in  other  members  of  the  class.  Voris  v.  Sloan  can- 
not possibly  go  upon  the  ground  that  the  Statute  on  Entails 
applied,  because  the  court  held  the  children  took  not  only  abso- 
lute, but  also  indefeasible  interests,  while  in  the  very  next  case 
reported,  Butler  v.  Huestis,^^  the  court  distinctly  declared  that 
the  remainder  created  by  the  Statute  on  Entails  was  subject  to 
be  defeated  by  the  death  of  children  before  the  life  tenant.  The 
words  of  the  court  are:  "Mrs.  Huestis,  under  our  statute  [on 
entails],  would  take  a  life  estate  in  the  property,  and  the  re- 
mainder would  pass  in  fee  simple  absolute  to  her  children,  al- 
though it  might  open  to  let  in  afterborn  children,  and  he  divested 
as  to  such  a^  should  die  before  the  determination  of  the  life 
estate."  If,  therefore,  the  holding  of  Voris  v.  Sloan,  that  the 
children  take  absolute  and  indefeasible  interests  on  birth  de- 
pended on  the  Statute  on  Entails,  then  it  is  absolutely  contra  to 
the  above  dictum  in  the  very  next  case  of  Butler  v.  Huestis, 
decided  at  the  same  time.  It  is  not  necessary  to  place  our  Su- 
preme Court  in  the  position  of  such  inconsistency.  The  way  out 
is  the  explanation  just  given,  that  the  gift  over  in  Voris  v.  Sloan, 
'if  the  life  tenant  should  die  without  issue,"  causes  "heirs  of 

s--?  68  111.  .'594,  598. 

468 


Ch.    XVII]  RULE    IN    SHELLEY'S    CASE  [§419 

the  body"  to  be  construed  "issue."    It  is  true  that  the  Court  in 
Vo7-is  V.  Sloan  said  :^*    "  Had  the  deed  contained  no  limitation 
over  to  the  grantor  or  his  heirs,  then  it  is  manifest  that,  by  the 
statute  de  donis,  the  heirs  of  her  body  would  have  taken  an 
estate  tail,  but  as  entails  have  been  abolished  by  our  conveyance 
act  they  would  at  birth  have  taken  a  fee."     It  is  very  difficult 
to  tell  what  this  means.     The  following  explanation  is  believed 
to  be  correct:     Omitting  the  gift,  there  would  have  been  a 
straight  gift  to  A  for  life,  remainder  to  the  heirs  of  her  body. 
Assuming  the  Rule  in  Shelley's  Case  did  not  apply,  A  would 
have  a  life  estate.    But  what  estate  would  the  heirs  of  the  body 
have  had  by  way  of  remainder?    Under  the  common  law  strictly 
they  would  have  had  a  remainder  in  tail.    The  Statute  on  Entails 
would,  then,  apply  to  this  remainder  in  tail  to  the  heirs  of  the 
body  of  the  life  tenant,  turning  the  remainderman  in  tail  into 
tenants  for  life,  with  a  further  remainder  in  fee  simple  to  the 
heirs  of  their  bodies.    The  court,  however,  regarded  this  as  an 
absurd  result.    It  regarded  the  indirect  effect  of  the  Statute  on 
Entails  as  sufficient  to  warrant  the  holding  that  when  the  heirs 
of  the  body  of  the  life  tenant  took  in  remainder  they  would  take 
a  fee  simple,  as  if  the  words  of  limitation  indicating  a  fee  sim- 
ple had  been  added,  thereby  terminating  a  further  entailing  at 
once.    In  Lehndorf  v.  Cope,^-'  however,  the  deed  ran  to  "M.  A. 
L.  and  her  heirs  by  her  present  husband,  H.  L."    This  was  held 
to  give  M.  A.  L.  a  fee  tail  special  at  common  law,  which  the 
Statute  on  Entails  turned  into  a  life  estate  to  M.  A.  L.,  and  a 
remainder  in  fee  to  the  bodily  heirs  of  herself  and  her  husband. 
The  court  then  said  that  even  proceeding  upon  the  supposition 
that  M.  A.  L.  took  a  life  estate  by  the  original  limitation  the  re- 
sult would  be  the  same,  since  M,  A.  L.,  by  the  Rule  in  Shelley's 
Case,  "would  at  common  law  be  seized  of  an  estate  in  fee  tail  and 
brought  directly  within  the  terms  of  section  6  of  the  Conveyanc- 
ing Act." 

§  419.  There  are  three  grounds  for  insisting  that  the  Rule 
does  not  apply  where  the  remainder  is  to  the  "heirs  of  the 
body"  of  the  life  tenant:  First:  Estates  tail  have  in  effect 
been  abolished  by  the  Statute  on  Entails.  Hence  the  application 
of  the  Rule  in  Shelley's  Case,  which  would  result  in  an  estate 
tail,  should  be  denied  as  a  necessary  effect  of  the  Statute  on  En- 

34  68  111.  588,  592.  ^5  122  El.  317,  331. 

469 


§  419]  FUTURE   INTERESTS  [Cil.    XVll 

tails. ^^  Second:  When  it  was  first  stated  in  Baker  v.  Scott, ^"^ 
that  the  Rule  in  Shelley's  Case  did  not  apply  where  the  remain- 
der was  to  the  "heirs  of  the  body"  of  the  life  tenant,  our  Su- 
preme Court  very  likely  read  the  Statute  on  Entails  as  creating  a 
life  estate  in  the  first  taker  wath  a  remainder  to  the  "heirs  of  his 
body"  in  fee.  Indeed,  this  was  the  literal  force  and  effect  of 
the  statute.^s  If,  then,  the  Rule  in  Shelley's  Case  applied  to 
create  an  estate  tail,  the  statute  would  turn  the  limitations  back 
into  exactly  what  they  were  before  the  Rule  applied.  This  was 
absurd  and  incongruous.  Naturally  it  was  avoided  by  re- 
garding the  Rule  in  Shelley's  Case  as  abolished  by  the  Statute 
on  Entails  so  far  as  the  case  of  a  remainder  to  "the  heirs  of  the 
body"  of  the  life  tenant  was  concerned.  There  is  still  a  third 
ground  for  the  refusal  to  apply  the  Rule  in  Shelley's  Case.  It 
is  the  incongruity  of  result  in  using  one  rule  to  defeat  the 
settlor's  or  testator's  intention  in  order  to  apply  another  rule 
which  does  the  same  thing.  Thus,  where  the  remainder  is  to 
the  heirs  of  the  body  of  the  life  tenant,  the  intent  of  the 
testator  is  twice  defeated.  The  Rule  in  Shelley's  Case  defeats  it 
by  giving  A  an  estate  tail,  and  then  the  Statute  on  Entails 
defeats  it  by  turning  it  into  a  life  estate  in  A  and  a  vested  and 
indefeasible  remainder  to  his  children  on  birth  thereby  destroy- 
ing any  remainder  limited  over  after  A's  death  without  heirs 
of  his  body  at  his  death. ^9  The  intent  of  the  testator  may  be 
shattered  even  more  violently.  Suppose,  for  instance,  that  the 
limitations  are  to  A  for  life,  remainder  to  the  heirs  of  the  body 
of  A,  but  if  A  dies  without  heirs  of  his  body  at  his  death,  then 
to  B  and  his  heirs.  Suppose  that  A  died  without  issue  surviv- 
ing him  after  having  had  issue.  If  the  Rule  in  Shelley's  Case 
applies  A  will  take  an  estate  tail  with  a  gift  over  on  a  definite 
failure  of  issue.  By  the  statute  A  will  take  a  life  estate  with  a 
remainder  in  fee  in  his  children,  vested  in  them  indefeasibly 
upon  birth,  and  the  gift  over,  by  force  of  the  statute,  will  be 
destroyed  and  the  heirs  or  devisees  of  A's  children  (their  spouses 
included)  will  take.  This  is  ruining  the  testator's  intention 
with  a  vengeance. 

36  Compare    the    reasoning    upon  s-  62  111.  86,  98. 

which     the     rule     in    Wild's    case,  3»  Ante,   §405. 

which  operated  to  create  an  estate  39  Ante,  §  411. 

tail  was  eliminated  from  the  law  of 
this  State,  post,  §  562. 

470 


Ch.  XVII]  RUI.E  IN  Shelley's  case  [§420, 

!^  420.  The  recent  cases,  however,  hold  that  the  Rule  does 
apply  where  the  remainder  is  to  "the  heirs  of  the  body"  of 
the  life  tenant:  When  it  was  settled  that  the  statutory  re- 
mainder created  by  the  Statute  on  Entails  vested  indefeasibly 
in  the  children  of  the  first  tenant  in  tail  upon  birth  *"  one  of 
the  reasons  for  holding-  that  the  Rule  in  Shelley's  Case  did  not 
apply  when  the  remainder  was  to  the  heirs  of  the  body  of  the 
life  tenant  failed.  The  question  then  arose  whether  the  other 
reasons  were  sufficient.  Recent  cases  have  assumed  without 
discussion  that  they  were  not. 

In  Moore  v.  Reddel,^^  the  limitations  were  to  Marshall  Brown 
for  life  "with  remainder  to  the  heirs  of  the  body  of  said  ^Marshall 
Brown  and  their  assigns  forever."  The  question  of  the  appli- 
cation of  the  Rule  in  Shelley's  Case  was  not  mentioned  by  the 
court.  Nevertheless,  the  decision  necessarily  starts  with  the 
assumption  that  the  Rule  in  Shelley's  Case  did  apply  and  gave  to 
IMarshall  Brown  a  fee  tail  by  the  common  law,  upon  which  the 
Statute  on  Entails  then  operated.  This  assumption  appears  to 
have  been  promoted  by  the  admissions  and  argument  of  coun- 
sel for  the  appellants,  who  were  vitally  interested  in  the  non- 
application  of  the  Rule  in-  Shelley's  Case.  An  examination  of  the 
briefs  filed  on  behalf  of  these  appellants  shows  that  counsel  in- 
sisted that  the  Rule  in  Shelley's  Case  did  apply  and  that  an 
estate  tail  was  created.  If  Moore  v.  Reddel  stood  alone  it  might 
be  seriously  doubted  that  the  Supreme  Court  intended  to  go  back 
upon  the  line  of  precedents  already  established  to  the  effect 
that  the  Rule  in  Shelley's  Case  would  not  apply.  An  assumption 
of  the  court  induced  by  a  clear  admission  of  counsel  could  hardly 
be  regarded  as  making  the  law  of  the  state  and  of  overruling  a 
line  of  consistent  dicta  and  actual  decisions  holding  contra  to 
counsel's  admissions. 

In  ^yinchcll  v.  ^Yinchell,*~  however,  decided  at  the  same  term 
of  court  as  Moore  v.  Reddel,  and  with  an  opinion  by  the  same 
justice  who  wrote  the  opinion  in  Moore  v.  Reddel,  our  Supreme 
Coui-t  held  and  in  terms  declared  that  the  Rule  in  ShHley's  Case 
would  apply  where  the  remainder  was  to  the  heirs  of  the  body 
of  the  life  tenant.  The  limitations  in  Winchell  v.  Winchell  were 
to  Fannie  for  life  "and  at  her  death  to  go  to  her  heirs;  but  in 

40  Ante,  §  406.  ■•-  '-59  111.  471. 

41259  111.  36. 

471 


§  420]  FUTURE   INTERESTS  [ClI.    XVII 

case  she  shall  die  without  issue,  then  the  property  above  devised 
to  her  shall  go  to  my  other  heirs,  share  and  share  alike." 
"Heirs"  in  the  remainder  to  Fannie 's  heirs  was  construed  heirs 
of  the  body,  and  the  limitations  are  to  be  read  as  if  the  re- 
mainder was  limited  to  the  heirs  of  the  body  of  the  life  tenant. 
Fannie  filed  a  bill  to  quiet  her  title  as  against  her  daughter  and 
brother,  the  latter  representing  those  who  might  be  entitled 
upon  the  gift  over  if  Fannie  died  without  issue.  The  decree 
was  that  Fannie  was  entitled  in  fee  simple  and  that  there  was 
no  other  interest  present  or  future.  On  a  writ  of  error  by  the 
daughter  this  was  reversed  and  remanded  with  directions  to 
enter  a  decree  that  Fannie  had  only  a  life  estate  with  a  vested 
remainder  in  fee  in  her  children  subject  to  open  and  let  in  other 
children  that  might  be  born,  and  that  the  gift  over  if  Fannie  died 
without  issue  could  not  take  effect.  This  direction  can  only  rest 
upon  the  ground  that  the  Rule  in  Shelley's  Case  applied  so  that 
an  estate  tail  was  created  upon  which  the  Statute  on  Entails 
might  operate  so  as  to  create,  under  the  rule  of  Moore  v.  Red- 
del,  a  remainder  in  Fannie 's  children  vested  as  soon  as  born, 
and  indefeasibly  vested  except  so  far  as  the  same  was  subject  to 
open  and  let  in  other  children.  If  the  Rule  in  Shelley 's  Case  had 
not  applied,  then  the  Statute  on  Entails  would  not  have  applied 
and  the  remainder  would  have  been  contingent  to  those  persons 
who  answered  the  description  of  heirs  of  the  body  of  the  life 
tenant  at  the  life  tenant's  death.^^  The  gift  over  would  have 
been  valid  as  a  contingent  remainder  which  was  sure  to  take 
effect,  if  at  all,  at  the  time  of  the  life  tenant's  death  if  the  life 
tenant  then  died  without  issue  surviving.  The  court,  by  Mr. 
Justice  Cartwright,  said,  that  "it  [the  Rule  in  Shelley's  Case] 
has  been  abolished  as  to  estates  tail  by  the  sixth  section  of  the 
Conveyance  Act.  As  to  limitations  controlled  by  that  section, 
the  only  use  made  of  the  rule  is  for  the  purpose  of  determining 
whether  by  the  common  law  a  fee  tail  would  have  been  created. 
If  it  would,  the  person  who  would  have  been  seized  in  fee  tail 
is  seized  for  her  or  his  natural  life,  only,  and  the  remainder 
passes  in  fee  simple  absolute  to  the  person  or  persons  to  whom 
the  remainder  is  limited. ' '  *^ 

*3  Aetna  Life  Ins.  Co.  v.  Hoppin,  NOTE:     When    a    remainder    to 

249  111.  406,  473;  214  Fed.  928.  "heirs"  of  the  Ufe  tenant  is  con- 

**  Eir-hardson   v.  Van  Gundy,  271  strued  to  mean  "heirs  of  the  body" 

ni.  476,  aocord.  of  the  life  tenant:    Where  there,  is 

472 


Cn.  XVII]  RULE  IN  Shelley's  case  f§  421 

Topic  3. 

Where  the  Remainder  Is  to  "Heirs,"  or  "Heirs  of  the 
Body"  of  the  Life  Tenant,  to  What  Extent  Can  "Heirs," 
or  "Heirs  of  the  Body"  Be  Construed  to  Be  Words  of 
Purchase  and  Not  Words  of  Limitation  and  the  Appli- 
cation of  the  Rui^e  Thereby  Avoided. 

§421,  Conflicting  results  of  the  cases:  It  has  been  held 
that  the  Rule  in  SheUey's  Case  does  not  apply  where  the  remain- 
der is  limited  to  the  life  tenant's  "heir  male"  (in  the  singular 
number)  with  superadded  words  of  limitation,  such  as  "and 
the  heirs  of  such  heir  male. ' '  ^^  So,  if  the  remainder  is  to  the 
life  tenant's  heir  (in  the  singular  number)  "for  life,"  the  Rule 
in  Shelley's  Case  does  not  apply. ^*'  In  Evans  v.  Evans  *~  the  re- 
mainder was  limited  to  "such  person  or  persons  as  at  the  decease 
of  the  said  A  [the  life  tenant]  shall  be  his  heir  or  heirs  at  law, 
and  of  the  heirs  and  assigns  of  such  person  or  persons."  Sir 
Howard  Elphinstone  ^^  supports  this  as  within  the  precise  scope 
of  Archer's  case  ^^  because  the  remainder  is  to  the  "heir"  in 
the  singular  number  and  words  of  limitation  are  superadded, 
together  with  the  direct  reference  to  the  "person  or  persons" 
who  answer  the  particular  description.  The  word  "heirs"  in 
the  plural  is  disregarded  because  it  is  inconsistent  with  the  ex- 
plicit provision  that  the  "person  or  persons"  answering  the 
particular  description  are  to  take  in  fee  as  a  new  stock  of 
descent.  There  is  much,  however,  in  the  opinion  of  the  court 
to  lead  one  to  conclude  that  the  Rule  in  Shelley's  Case  was  re- 

a  gift  to  the  testator's  daughter  for  only  in  case  she  died  without  leav- 

life  with  a  remainder  to  the  life  ten-  ing    heirs    of    her    body.      See    also 

ant's   "heirs,"   and   a   gift   over   if  Winter  v.  Dibble,  251  111.  200,  216. 

the  life  tenant  dies  without  issue  to  *5  Archer's  case,  1  Co.  66b;  Willis 

"my  other  heirs,"  the  remainder  to  v,  Hiscox,  4  My,  &  Cr.  197;  Gierke 

the    heirs    of    the    daughter    means  v.    Day,    Moore,    593;     Greaves     v. 

"heirs  of  the  body."     (Winchell  v.  Simpson,  12  W.  R.  773,  10  ,Tur.  N. 

Winchell,  259  111.  471.)     But  in  Ahl-  S.   609. 

field   V.   Curtis,   229   111.   139,   where  •««  White  v.  Collins,  Comyn  's  Rep. 

the    limitations    were    to    the    testa-  289;    Pedder  r.   Hunt,  18   Q.   B.   D. 

tor 's    daughter    and    ' '  then    to    her  565, 

heirs,"    with    a    gift    over    if    the  ^M 18921  2  Ch.  173. 

daughter  died  ' '  leaving  no  heirs  of  •»«  9  Law  Quart.  Rev.  2. 

her    own,"    it    was    held    that    the  *'■>  1  Co.  66b. 

daughter  took  a  fee  with  a  gift  over 

473 


§421] 


FUTURE   INTERESTS 


[Ch.  XVII 


garded  as  not  applying  in  the  case  where  the  remainder  was  "to 
the  person  or  persons  who  should  be  the  life  tenant 's  heirs  at  law^ 
and  their  heirs  and  assigns."  In  several  American  jurisdictions 
there  are  eases  supporting  the  holding  that  the  Rule  does  not 
apply  to  such  a  remainder.^o  In  Maryland,  however,  it  has  re- 
cently been  held  that  the  Rule  does  apply  to  such  remainder.^i 
It  has  been  held  that  the  Rule  applies  when  the  remainder  is  lim- 
ited to  the  life  tenant's  "heir"  (in  the  singular  number)  omit- 
ting the  subsequent  w^ords  of  limitation,  such  as  "and  the  heirs 
of  such  heir,"  "'-  and  it  makes  no  difference  that  the  remainder 
is  to  the  "heir"  (in  the  singular  number)  "forever."  ^^^  it  has 
been  held  also  that  the  Rule  applies  when  the  remainder  is  "to 
heirs  of  the  body ' '  with  the  words  of  limitation  superadded,  such 
as  "and  their  heirs  and  assigns  forever, "^^  or  to  "heirs  and 
their  heirs  and  assigns  "  or  "  in  fee  simple. ' '  ^^  But  the  holding  in 
the  English  cases  was  formerly  that  a  remainder  to  ' '  heirs  of  the 
body"  as  tenants  in  common,  with  words  of  limitation  super- 


50  Peer  v.  Hennion,  77  N.  J.  L. 
693  (remainder  "to  such  person  or 
persons  as  shall  be  her  heir  or  heirs 
of  lands  held  by  her  in  fee  sim- 
ple"); Taylor  v.  Cleary,  29  Gratt. 
(Va.)  448  (remainder  "to  sueh  per- 
son or  persons  as  shall  at  that  time 
[the  death  of  the  life  tenant  E]  an- 
swer the  description  of  heir  or  heirs 
at  law  of  the  said  E,  and  such  per- 
son or  persons  shall  take  the  said 
land  under  that  description  as  pur- 
chasers under  and  by  virtue  of  this 
deed  and  not  by  inheritance  as  heirs 
of  the  said  -B")  ;  Earnhart  v.  Earn- 
hart,  127  Ind.  397  (remainder  "to 
the  persons  who  would  have  inher- 
ited the  same  from  the  said"  life 
tenant  "ha3  he  owned  the  same  in 
fee  simple  at  the  time  of  his 
death").  In  Robinson  v.  Le  Grand 
&  Co.,  65  Ala.  Ill,  it  was  provided 
that  after  the  life  tenant's  death 
the  land  "shall  pass  according  to 
the  Statutes  of  Descent  and  Distri- 
bution of  the  State  of  Alabama  now 


in  force. ' '  The  Eule  did  not  apply. 
Geist  V.  Huffendick,  272  111.  99 
(remainder  for  life  of  another 
* '  shall  descend  in  accordance  with 
the  laws  of  Illinois"). 

51  Cook  V.  Councilman,  109  Md. 
622  (remainder  "to  such  person  or 
persons  as  would,  under  the  laws  of 
the  State  of  Maryland,  inherit  the 
same  as  the  heirs  of  my  said  nephew 
[the  life  tenant]  if  he  bad  died  in- 
testate seized  in  fee  thereof"). 

52  Richards  v.  Bergavenny,  2  Vern. 
324;  Theobald  on  Wills,  7th  ed.  422. 

5  3  Fuller  V.  Chamier,  L.  R.  2  Eq. 
682. 

54  Jesson  V.  Wright,  2  Bligh.  1 ; 
Doe  V.  Harvey,  4  B.  &  C.  610 ;  Mills 
V.  Seward,  1  J.  &  H.  733;  Clark  v. 
Neves,  76  S.  C.  484;  Carroll  v. 
Burns,  108 '  Pa.  St.  386;  Kepler  v. 
Larson,  131  la.  438. 

55  Bonner  v.  Bonner,  28  Ind.  App. 
147;  Brown  v.  Bryant,  17  Tex.  Civ. 
App.  454;  Fowler  i;.  Black,  136  111. 
363;  Winter  v.  Dibble,  251  111.  200. 


474 


Ch.  XVII J  RULE  IN  Shelley's  case  (§421 

added,  prevented  the  application  of  the  Rule/'"  and  some  Ameri- 
can jurisdictions  seem  to  have  gone  so  far  as  to  hold  that  the 
Rule  did  not  apply  where  only  words  were  added  to  the  effect 
that  the  heirs  of  the  life  tenant  were  to  take  equally  as  tenants 
in  common. ^'^     In  some  American  jurisdictions  it  has  been  held 
that  the  rule  does  not  apply  when  the  remainder  is  "to  heirs  of 
the  body"  with  the  superadded  words  of  limitation,  such  as 
"and  their  heirs  and  assigns  forever "^s  or  "in  fee  simple."  ^» 
Suppose  now  the  remainder  were  limited  to  "heirs"  with  words 
of  limitation  superadded,  such  as  "and  their  heirs  and  assigns 
forever,"  and  then  it  was  expressly  stated  that  heirs  were  to 
take  as  purchasers  in  fee  simple,  and  thereby  become  a  new  stock 
of  descent,  and  that  the  word  heirs  was  used  as  a  word  of 
purchase  and  not  as  a  word  of  limitation.     Would  the  Rule 
apply  ?    Clearly  not  in  the  jurisdiction  holding  that  the  Rule  does 
not  apply  where  the  remainder  is  to  heirs  with  words  of  limi- 
tation superadded.     But  in  jurisdictions  holding  that  the  Rule 
does  apply  even  where  the  remainder  is  to  heirs  with  words  of 
limitation  superadded,   what   would   the   court   do?     Butler,^^ 
Fearne,6i  Preston,G2  r^^^^  Sugden  ^^  all  seem  to  have  thought  the 
Rule  would  not  apply  in  such  a  case.     On  the  other  hand,  Lord 
Commissioner  Wilmot  ^^  seems  to  have  been  quite  positive  that 
the  Rule  would  apply.     The  Law  Lords  in  the  recent  case  of 
Van   Grutten  v.  Foxwell^'^  seem  to  leave  the   question  open. 
Lord  Davey  seems  to  say  the  Rule  would  not  apply ;  ^^  Lord 

56  Doe  V.  Laming,  2  Burr.  1100;  C.  290;  Butler  v.  Huestis,  68  111. 
Crump  V.  Norwood,  7  Taunt.  362.  594;  ^tna  Life  Ins.  Co.  v.  Hoppin, 

57  Surges  r.  Thompson,  13  R.  I.  249  Til.  406,  412-413;  214  Fed.  928. 
712  (remainder  to  life  tenant's  r,o  Westcott  v.  Meeker,  144  la. 
"heirs  at  law,  him  surviving,  share  311;  Archer  v.  Broekschmidt,  5  Oh. 
and    share    alike");     Simonton    v.  N.  P.  349. 

White,  93  Tex.  50    (remainder  "to  co  Butler 's    Notes    Co.    Lit.    376b 

be  equally   and   impartially  divided  et  seq. 

between  her  [the  life  tenant's]  bod-  ci  Contingent  Remainders,  p.  189. 

ily  heirs").  «2  Preston  on  Estates,  282. 

58  DeVaughn  v.  DeVaughn,  3  App.  «•''  Montgomery  v.   Montgomery,  3 
Cas.     (D.     C.)     50;     DeVaughn     v.  Jones  &  LaT.  47,  51. 
Hutchinson,  165  U.  S.  566;   Dott   r.  "  Saver  v.  Mastermau,  Wilm.  386. 
Willson,   1    Bay.    (S.   C.)    457;    Le-  c5  [1897]   A.  C.   658. 

macks  v.  Glover,  1  Rich.  Eq.  (S.  C.)  ««/(?.,  685. 

141;    Mclntyre  v.   Mclntyre,   16   S. 

475 


§  422]  FUTURE   INTERESTS  [Ch.    XVII 

Maouagliten  that  it  would.^"    Lord  Chancellor  Herschell  is  non- 
committal.*^^ 

It  is  proposed  to  show  that  underlying  these  conflicting  results 
are  two  theories  with  respect  to  the  application  of  the  Rule  in 
Shelley's  Case:  The  first,  that  it  applies  only  when  the  word 
"heirs"  in  the  remainder  is  used  as  a  word  of  limitation  and 
not  as  a  word  of  purchase;  the  second,  that  the  Rule  applies 
precisely  when  the  word  "heirs"  in  the  remainder  is  used  as  a 
word  of  purchase.^^ 

§  422.  What  is  meant  by  "heirs"  as  a  word  of  "purchase" 
and  as  a  word  of  "limitation":  When  "heirs"  or  "heirs  of 
the  body"  are  used  as  embracing  the  whole  line  of  inheritable 
succession  they  are  said  to  be  used  as  words  of  limitation.  When 
"heirs"  or  "heirs  of  the  body"  are  used  to  designate  the  person 
or  persons  who  would  be  entitled  to  take  by  descent  from  the  an- 
cestor  such  person  or  persons  when  thus  ascertained  to  take 

as  individuals  because  they  answer  that  description,  and,  if  they 
take  in  fee,  to  thereupon  become  a  new  stock  of  descent — they 
may  be  said  to  be  used  as  words  of  purchase.  Thus,  in  the  com- 
mon case  of  a  devise  to  A  for  life  and  then  to  the  testator's  heirs 
at  law,  heirs  is  used  to  designate  the  person  or  persons  who 
are  entitled  to  take  by  descent  from  the  testator  at  his  death. 
"Heirs"  is  used  as  a  word  of  purchase.  No  doubt  in  applying 
the  Rule  in  Shelley's  Case  "heirs"  is  said  to  be  used  as  a  word  of 
purchase  when,  in  a  remainder  to  the  life  tenant's  heirs,  it  has 
been  construed  to  mean  "issue"  or  "children."  It  is  not,  how- 
ever, the  most  accurate  mode  of  expression  to  say  that  "heirs" 
in  such  a  case  is  used  as  a  word  of  "purchase."  The  word  used 
is  used  as  a  word  of  purchase  no  doubt,  but  that  word  is  "issue" 
or  "children"  and  not  "heirs."  Let  it  be  understood  then  that 
when  in  this  topic  reference  is  made  to  "heirs"  as  a  word  of  pur- 
chase reference  is  not  made  to  the  case  where  "heirs"  is  con- 
strued as  meaning  "children"  or  "issue,"  but  to  the  case  where 
"heirs"  is  used  as  a  word  to  designate  the  person  or  persons  who 
would  be  entitled  to  take  by  descent  from  the  life  tenant  in  case 
the  life  tenant  died  seised  and  possessed  of  a  fee  simple,  such 
person  or  persons  when  thus  designated  to  take  as  individuals 
because  they  answer  that  description. 

<■>' Id.,   680.  f-^Ante,  §35. 

»8  Id.,  663. 

476 


Cli.    XVII J  RULE   IN    SIIELLEY'S    CASE  [§-123 

§  423.  The  first  theory  of  the  application  of  the  Rule  is  that 
it  applies  only  when  "heirs"  in  a  remainder  to  heirs  is  used 
as  a  word  of  limitation  embracing  the  whole  line  of  inheritable 
succession,  and  that  it  does  not  and  cannot  apply  where  "heirs" 
in  a  remainder  is  used  as  a  word  of  purchase:  AccortUng  to 
Sir  Howard  p]lphinstone  the  Rule  in  Slielley's  Case  finds  its  log- 
ical justification  in  the  meaning  of  the  word  "heirs."  "The  heirs 
of  A  [the  life  tenant]  are  not  a  definite  coexisting  group  of  per- 
sons, but  an  indefinite  number  of  persons  who  must  take,  if  at 
all,  in  succession  to  one  another.  They  cannot  take  as  joint 
tenants  or  tenants  in  common,  and  there  is  no  other  way  for 
them  to  take  by  purchase.  Descent,  therefore,  is  the  only  way 
in  w'hich  they  can  take,  and  it  must  be  descent  from  A.  """^ 
"The  reason  given  by  Sir  Howard  [for  the  Rule  in  Shelley's 
Case]  is  that  there  is  no  way  in  which  "the  heirs  of  A,"  a  living 
person,  can  take  as  purchasers,  for  they  are  an  indefinite  suc- 
cession of  persons.  Therefore  the  only  way  of  giving  effect  to 
such  a  limitation,  following  a  freehold  estate  not  of  inheritance 
given  to  A  by  the  same  instrument,  is  to  say  that  it  creates  no 
new  estate,  but  enlarges  the  ancestor's  estate  into  a  fee  and  en- 
ables his  heirs  to  take  by  descent."  "^^  The  fundamental  premise 
in  this  explanation  is  that  in  1324, '^2  when  the  Rule  first  made  its 
appearance,  "heirs"  in  a  remainder  to  heirs  actually  did  include 
the  whole  line  of  inheritable  succession.  It  was  naturally  and 
primarily  taken  not  as  a  word  of  purchase  designating  the  indi- 
vidual or  individuals  w^ho  might  answer  the  description  of  heir 
or  heirs  of  the  life  tenant  at  the  life  tenant's  death,  but  as  a 
word  of  limitation.  If  this  be  the  basis  for  the  Rule,  then  it 
should  follow  that  the  condition  which  invokes  the  application 
of  the  Rule  in  SKelUy's  Case  is  the  use  of  the  word  "heirs"  in 
the  remainder  as  a  word  of  limitation.""'     It  should  follow  also 

70  Review  of  4th  ed.  of  Good-  &  O.  941,  note  (a).  Cf.,  also  Pro- 
eve  's  Law  of  Real  Property,  14  Law  vost  of  Beverley 's  case,  Y.  B.,  40 
Quart.  Rev.,  98.  Edw.    Ill,    fol.    9a,    b    (1366),   aud 

71  Review  of  5th  ed.  of  Good-  Shelley's  case,  1  Co.  93b  (1581), 
eve  's  Law  of  Real  Property,  22  Law  from  which  the  Rule  has  its  name. 
Quart  Rev.,  333.  5   Gray's   Cases   on    Prop.,   2nd   od. 

72  "The    Rule    in    Shelley's    case  8.?. 

is    said    to    be    first    mentioned    in  "'Butler's   Notes  Co.    Lit.   .'5773 : 

Abel's  case,  18  Edw.  II,  577  (1324),       Fearne,  Cont.  Rem.,  p.  189;  Preston 
which  will  be  found  translated  7  M.      on  Estates,  282. 

477 


§  423]  FUTURE    INTERESTS  [Ch.    XVII 

that  if  the  settlor  made  it  perfectly  clear  by  direct  declaration 
that  he  used  the  word  heirs  as  a  word  of  purchase  and  not  at 
all  as  a  word  of  limitation,  the  Rule  would  not  apply."  ^  From 
this  it  would  logically  follow  that  whether  "heirs"  in  the  re- 
mainder to  the  life  tenant's  heirs  was  used  as  a  word  of  pur- 
chase or  as  a  word  of  limitation  would  become  a  ciuestion  of  con- 
struction."-"^  The  word  "heirs"  would  be  in  its  primary  meaning 
a  word  of  limitation,  but  a  special  context  sufficiently  clear  to 
show  that  heirs  was  used  as  a  word  of  purchase  would  be  avail- 
able to  give  heirs  a  meaning  which  would  prevent  the  application 
of  the  Rule.  Such  was  substantially  the  position  taken  in 
Archer's  case."^'^  There  the  remainder  was  to  the  life  tenant's 
' '  next  heir  male ' '  and  ' '  to  the  heirs  male  of  the  body  of  such  next 
heir  male."  The  Avord  "heir"  in  the  singular  number  was  in 
its  primary  meaning  a  word  of  limitation,  so  that  the  Rule  in 
Shelley's  Case  applied. '^'^  But  when  the  words  of  limitation  were 
superadded  to  "heir"  in  the  singular  number  it  indicated  that 
the  person  who  turned  out  to  be  the  heir  was  to  take  in  fee  or 
in  fee  tail,  as  the  case  might  be,  and  thereupon  become  a  new 
stock  of  descent.  Hence  the  Rule  did  not  apply.  The  Rule,  in 
short,  did  not  apply  because  upon  the  special  context  the  primary 
meaning  of  "heir"  as  a  word  of  limitation  embracing  the  whole 
line  of  inheritable  succession  was  departed  from,  and  "heir" 
was  upon  its  proper  interpretation  taken  as  a  word  of  purchase. 
It  logically  followed  that  w^hen  the  remainder  was  "to  the  per- 
son or  persons  who  would  be  the  life  tenant's  heir  or  heirs  at 
law  and  their  heirs  and  assigns  forever,"  the  context  clearly 
indicated  that  the  heir  or  heirs  Avere  to  take  in  fee  as  a  new 
stock  of  descent  as  purchasers  and  that  the  word  "heirs"  was 
not  used  as  a  word  of  limitation  but  as  a  word  of  purchase. 
Such  seems  to  have  been  the  position  actually  taken  by  the  Court 
of  Appeal  in  Evans  v.  EvansJ'^  It  would  logically  follow  that 
a  remainder  limited  to  "heirs"  of  the  life  tenant  "and  their 
heirs  and  assigns"  or  "in  fee  simple"  would  prevent  the  Rule 
from  applying.  This  position  also  the  English  courts,  under  the 
lead  of  Lord  Mansfield,  seem  to  have  started  to  take,'^^   and 

74  Butler's  Notes  Co.  Lit.  377a.  A^ern.   324;    Theobald  on  Wills,  7th 

75Fearne,  Cont.  Eem.   189;   Pres-  ed.  422, 

ton  on  Estates,  282,  'i  [1892]  2  Ch.  173. 

7r.a  1  Co.  66b.  78  Doe  v.  Laming,  2   Burr.   1100; 

7«  Eichards      v.      Bergavcnny,      2  Crump  v.  Norwood,  7  Taunt.  362. 

478 


Cii.  XVII]  RULE  IN  Shelley's  case  [§424 

some  American  courts  have  taken  it.'*^  Yet  the  later  English 
eases,  and  several  American  courts,  have  distinctly  repudiated 
it  and  applied  the  Rule  in  Shelley's  Case.^^ 

§  424.  The  second  theory  respecting  the  application  of  the 
Rule  is  that  it  applies  when  the  word  "heirs"  in  the  remainder 
is  used  as  a  word  of  purchase:  This  view  starts  with  the 
premise  that  there  is  no  difference  between  the  case  of  a  life 
estate  to  A  and  a  remainder  "to  the  heirs  of  B,"  and  the  case 
of  a  life  estate  to  A  and  a  remainder  "to  the  heirs  of  A."  In 
both  cases  alike  "heirs"  is  used  as  a  word  of  purchase  to  indi- 
cate the  person  or  persons  who  answer  the  description  of  B's 
or  A's  heirs,  as  the  case  may  be,  at  the  ancestor's  death.  Thus 
Challis^i  gives  as  the  example  of  Fearne's  fourth  class  of  con- 
tingent remainders,  the  remainder  after  a  life  estate  to  A  "to 
the  right  lieirs  of  J.  S.,"  who  is  at  that  time  living.  He  takes 
"right  heirs  of  J.  S."  as  being  naturally  and  primarily  words 
of  purchase.  The  remainder  which  they  create  is  contingent 
because  the  persons  who  are  to  take  cannot  be  ascertained  till 
J.  S.  dies.  The  same  learned  author,^-'  in  referring  to  the  case 
where  the  remainder  is  limited  to  the  heirs  of  the  life  tenant, 
declares  that  ''grammatically,  the  construction  of  the  second 
limitation  [the  remainder  to  the  heirs]  might  be,  to  give  a  re- 
mainder hy  purchase  to  the  specified  heirs.  And  since  the  person 
whose  heirs  they  are,  or  rather  are  to  be,  is  living  at  the  date  of 
the  limitation,  such  a  remainder,  if  taken  by  the  heirs  as  pur- 
chasers, would  be  a  contingent  remainder  of  Fearne's  fourth 
class,  being  a  limitation  in  remainder  to  a  person  not  yet  ascer- 
tained or  not  yet  in  being."  Such,  it  is  believed,  was  the  situa- 
tion in  1324  as  clearly  as  it  is  today.  True,  under  the  feudal 
law  of  descent  no  ancestor  could  have  more  than  one  heir,  for 

79  DeVaughn      v.      DeVaughn,      3  ^o  Jesson   v.    Wright,   2   Bligh.   1 ; 

App.      Cas.      (D.      C.)      50;      De-  Doe  v.  Harvey,  4  B.  &  C.  610;  Mills 

Vaughn   v.    Hutchinson,   165   U.    S.  v.  Seward,  1  J.  &  H.  733;   Clark  v. 

566;    Dott   v.   Willson,    1    Bay.    (S.  Neves,    76    S.    C.    484;     Carroll    r. 

C.)  457;  Lemaeks  v.  Glover,  1  Rich.  Burns,  108  Pa.  St.  386;    Kepler   v. 

Eq.    (S.  C.)    141;    Mclntyre  v.  Mc-  Larson,  131  la.  438;  Bonner  i'.  Bon- 

Intyre,  16  S.  C.  290 ;  Butler  i;.  Hues-  ner,    28    Ind.    App.    147;    Brown   v. 

tis,    68    111.    594;    ^Etna    Life    Ins.  Bryant,    17    Tex.    Civ.    App.    454; 

Co.    V.    Hoppin,    249    111.    406,    412,  Fowler  v.  Black,  136  111.  363;  Win- 

413;     214    Fed.    928;     Westcott    v.  ter  v.  Dibble,  251  111.  200. 

Meeker,     144     la.     311;     Archer     r.  si  Real  Property,  3rd  ed.   131. 

Brockensehmidt,  5  Oh.  N.  P.  349.  "-  Id.,  152. 

479 


§  424]  FUTURE   INTERESTS  [Ch.    XVII 

though  several  females  may  be  co-heiresses,  they  were  in  point 
of  law  only  one  heir.^^^  The  same  is  true  where  the  males  took 
altogether  gavelkind  lands.^^  Hence  "heirs"  in  the  plural  was 
technically  inappropriate  as  a  word  to  designate  the  person  or 
persons  who  would  be  entitled  to  take  by  descent  from  the  life 
tenant.  But  today  this  technically  inaccurate  use  of  the  word 
"heirs"  in  the  plural  is  easily  overcome  as  a  matter  of  con- 
struction wherever  it  is  apparent  that  the  word  "heirs"  is  used 
to  describe  the  individual  or  individuals  who  are  to  take  as  pur- 
chasers. It  is  surmised  that  it  made  no  more  difference  in  the 
fourteenth  century  than  it  did  in  the  nineteenth  that  "heirs" 
in  the  plural  was  used  in  limiting  the  remainder  to  the  ' '  heirs ' ' 
of  the  life  tenant  or  to  the  "heirs  of  J.  S."  In  both  cases  alike 
the  way  in  which  heirs  was  used  naturally  and  primarily  showed 
it  to  have  been  used  as  a  word  of  purchase  and  not  as  a  word  of 
limitation.  The  result,  however,  before  1430  of  the  use  of  the 
word  "heirs"  in  a  remainder  to  the  heirs  of  B  or  of  the  life  ten- 
ant A  being  taken  as  a  word  of  purchase,  was  that  a  contingent 
remainder  was  attempted  to  be  limited  which  was  wholly  void. 
The  feudal  system  was  not  prepared  in  the  fourteenth  century 
to  permit  any  future  interest  limited  after  a  freehold  to  any 
person  whose  identity  could  not  be  ascertained  until  the  termina- 
tion of  a  life  then  in  being.  The  exigencies  of  tenure  and  the 
protection  of  the  feudal  dues  forbade  the  practical  abeyance 
of  the  fee  until  the  death  of  a  living  person.  A  special  reason 
existed  for  not  permitting  a  remainder  to  the  heirs  of  the  life 
tenant  in  the  fact  that  such  a  remainder  might  be  used  to  defeat 
wardship  and  other  feudal  burdens  if  the  heirs  of  the  life  tenant 
came  in  as  purchasers  and  not  by  descent  from  the  ancestor.^^ 
The  remainder,  therefore,  to  the  heirs  of  the  life  tenant  or  to 
the  heirs  of  B,  if  the  word  "heirs"  were  taken  in  its  natural 
and  primary  meaning  as  a  word  of  purchase,  must  before  1430 
have  failed  entirely.^^  The  result  was  harsh,  especially  in  the 
case  of  the  remainder  limited  to  the  life  tenant's  heirs.  In  that 
case  only  the  life  estate  would  be  left  and  there  would  be  a  re- 
version in  fee  to  the  settlor.    The  main  object  of  the  settlement 

83  Lit.  §  241.  86  Ante,  §  28. 

84  Lit.  §  265. 

85  Challis   on   Real  Property,   3rd 
ed.  167.  - 

480 


Cii.  XVIlj  RULE  IN  Shelley's  case  [§424 

would  be  defeated  and  A's  family  deprived.  The  Rule  in 
Shelley's  Case  dealt  with  this  situation,  and  endeavored  to 
ameliorate  the  hardship  of  it  by  placing  the  fee  or  fee  tail,  as 
the  case  might  be,  in  the  ancestor  who  was  named  as  life  tenant. 
In  view  of  the  fact  that  the  remainder  to  the  heirs  as  purchasers 
was  wholly  void  the  Rule  did  carry  out  the  object  of  the  settlor 
as  nearly  as  miglit  be  in  tlie  then  existing  state  of  the  law.  The 
fact  that  the  life  tenant  took  the  fee  or  fee  tail,  so  that  upon  his 
death  his  heirs  or  the  heirs  of  his  body  could  take  by  descent 
from  him,  was  the  only  Avaj'  in  Avhich  the  life  tenant's  heirs  or 
the  heirs  of  his  body  could  take  at  all.  Thus  the  "heirs"  or  the 
"heirs  of  the  body"  obtained  through  the  ancestor  by  descent 
Avhat  they  were  given  as  purchasers,  but  which  the  feudal  land 
law  did  not  permit  them  to  take  as  purchasers.  Thus  the  Rule 
in  Shelley's  Case  was  actually  invented  to  give  effect  to  the 
settlor's  object  as  neary  as  possible.  In  this  view  the  Rule  was 
designed  to  operate  when  the  words  used  would  have  created  a 
contingent  remainder  to  the  "heirs"  of  the  life  tenant  or  to 
the  "heir"  of  the  life  tenant.  The  talk  about  the  Rule  carrying 
out  the  "general  intent"  meant  only  that  it  was  better  to  give 
the  life  tenant  a  fee  or  fee  tail  than  to  have  the  entire  remainder 
held  void  and  the  fee  returned  to  the  feoffor.  The  talk  about 
"heirs"  being  used  as  a  word  of  limitation  rather  than  a  w^ord 
of  purchase  was  a  mere  echo  of  the  result  reached  and  not  at  all 
a  basis  for  what  was  actually  done.  It  was  an  afterthought  to 
bolster  up  a  rule  which  gave  to  words  of  purchase  an  effect  some- 
thing like  words  of  limitation.  First,  the  Rule  was  applied  when 
the  remainder  was  to  heirs  as  purchasers,  and  then  to  justify  the 
Rule,  or  perhaps  as  merely  descriptive  of  the  effect  of  the  Rule, 
"heirs"  was  said  to  be  used  as  a  word  of  limitation.  In  this 
view  the  test  of  the  application  of  the  Rule  must  always  be : 
would  the  remainder  be  a  contingent  remainder  to  persons 
who  would  answer  the  description  of  heir  or  heirs  at  law  of  the 
life  tenant  at  his  death  in  the  jurisdiction  where  the  land  lies? 
In  short,  if  heir  or  heirs  is  used  as  a  word  of  purchase  the  Rule 
applies.  The  settlor  might,  therefore,  declare  as  emphatically 
as  he  pleased  that  the  heirs  were  to  take  as  purchasers,  and  he 
would  only  the  more  clearly  have  furnished  the  basis  for  the  ap- 
plication of  the  Rule.*"     A  fortiori,  if  the  remainder  were  to 

87  Sayer  r.  Masterman,  Wilm.  386. 

Kales  Fut.  Int. — 31  ^g\ 


§  425]  FUTTTRE   INTERESTS  [Ch.    XVII 

"heirs"  with  the  words  of  limitation  superadded,  together  with 
a  direction  for  co-ownership,  the  Rule  would  apply .**^  The  Eng- 
lish cases  to  the  contrary  ^^  were  properly  overruled,  and  Ameri- 
can eases  to  the  contrary,  under  the  second  theory,  are  un- 
sound,^*^  So,  if  the  remainder  is  limited  "to  the  person  or  per- 
sons who  may  be  the  heir  or  heirs  at  law  of  the  life  tenant  and 
to  their  heirs  and  assigns"  the  Rule  will  apply.  If  Evans  v. 
Evans  ^^  is  contrary,  it  is  inconsistent  with  our  second  theory. 
So,  if  the  remainder  is  to  the  "heir"  (in  the  singular  number) 
the  Rule  still  applies  because  as  a  word  of  purchase  there  is  no 
difference  between  the  remainder  to  the  "heir"  in  the  singular 
number  and  to  "heirs"  in  the  plural.^^  Qq^  jf  h^q  words  of  limi- 
tation be  added  to  the  remainder  to  the  heir  in  the  singular 
number  the  Rule  should  still  apply,  Archer's  case  to  the  con- 
trary is,  therefore,  inconsistent  with  this  second  theory, 

§  425.  Neither  of  the  above  two  theories  is  supported  by 
all  the  results  of  the  English  cases  which  are  now  recos:nized 
as  law:  The  second,  however,  seems  to  have  a  little  the  best 
of  it.  The  first  has  Archer's  case,^^  and  perhaps  the  more  recent 
case  of  Evans  v.  Evans.^^  The  second  theory  has  all  the  other 
results,  including  the  one  that  a  remainder  to  the  life  tenant's 
heirs  with  words  of  limitation  superadded  will  not  prevent  the 
application  of  the  Rule.^^     This  last  represents  the  triumph  in 

88  Jesson  V.  Wright,  2  Bligh.  1;  Intyre,  16  S.  C.  290;  Butler  v.  Hues- 
Doe  V.  Harvey,  4  B.  &  C.  610 ;  Mills  tis,  68  111.  594 ;  ^tna  Life  Ins.  Co. 
V.  Seward,  1  J.  &  H.  733;  Clark  v.  v.  Hoppin,  249  111.  406,  412,  413; 
Neves,  76  S.  C.  484;  Carroll  v.  214  Fed.  928;  Westcott  v.  Meeker, 
Burns,  108  Pa.  St.  386;  Kepler  v.  144  la.  311 ;  Archer  v.  Brocksehmidt, 
Larson,  131  la.  438;  Bonner  v.  Bon-  5  Oh.  N.  P.  349. 

ner,    28    Ind.    App.    147;    Brown    v.  'n  [1892]  2  Ch.  173. 

Bryant,    17    Tex.     Civ.    App.    454;  ^^  Richards      v.      Bergavenny,      2 

Fowler  v.  Black,  136  111.  363;  Win-  Vern.  324;   Theobald  on  Wills,  7th 

ter  V.  Dibble,  251  111,  200.  ed.  422. 

89  Doe  V.  Laming,  2  Burr.   1100;  as  i  Co.  66b. 
Crump  V.  Norwood,  7  Taunt.  362.  ^*  [1892]  2  Ch.  173. 

90  Burges  v.  Thompson,  13  E.  I.  95  Jesson  v.  Wright,  2  Bligh.  1 ; 
712;  Simonton  v.  White,  93  Tex.  Doe  t'.  Harvey,  4  B.  &  C.  610 ;  Mills 
50;  DeVaughn  v.  DeVaughn,  3  v.  Seward,  1  J.  &  H.  733;  Clark  v. 
App.  Cas.  (D.  C.)  50;  DeVauglin  >Jeves,  76  S.  C.  484;  Carroll  v. 
V.  Hutchinson,  165  U.  S.  566;  Burns,  108  Pa.  St.  386;  Kepler  v. 
Dott  V.  Willson,  1  Bay.  (S.  C.)  Larson,  131  la.  438;  Bonner  v.  Bon- 
457;  Lemacks  v.  Glover,  1  Rich.  ner,  28  Ind.  App.  147;  Brown  v. 
Eq,    (S.   C.)    141;    Mclntyre  v.  Me-  Bryant,    17    Tex.    Civ.    App.    454; 

482 


Ch.  XVII]  RULE  IN  Shelley's  case  [§425 

the  nineteenth  century  of  the  second  view  over  the  first,  which 
had  already  practically  secured  two  holdings  the  other  way.^*^ 
Nevertheless,  this  is  somewhat  balanced  by  the  recent  result 
reached  in  Evans  v.  Evans, ^"^  if  the  opinion  in  that  case  be  taken 
as  affirming  the  proposition  that  the  Rule  does  not  apply  to  a 
remainder  ' '  to  the  person  or  persons  who  answer  the  description 
of  the  life  tenant's  heirs  at  law  and  their  heirs  and  assigns  for- 
ever. ' '  On  the  English  cases  alone  it  seems  to  be  a  close  contest 
between  the  two  views.  In  this  country  it  is  plain  that  the  results 
reached  in  different  jurisdictions  show  in  a  number  of  instances 
a  greater  tendency  than  in  England  toward  the  first  theory.  In 
a  way  both  theories  are  being  supported  at  the  same  time  in 
single  jurisdictions.  Each  theory  retains  the  results  which  it 
captures  and  holds.  The  point  actually  undecided  in  England — 
i.  e.  where  the  remainder  is  to  heirs  and  it  is  expressly  declared 
that  the  word  is  used  as  a  word  of  purchase  and  not  as  a  word 
of  limitation — is  still  open  to  contest  by  the  advocates  of  each 
view.  It  is  probably  impossible  to  say  from  any  direct  historical 
evidence  which  theory  is  the  correct  one.  The  actual  historical 
foundations  for  the  Rule  are  largely  matters  of  speculation.  If 
we  seek  to  determine  which  theory  will  produce  results  conform- 
ing to  the  soundest  legislative  policy  the  outcome  of  the  contest 
is  still  doubtful.  The  first  theory  obviously  limits  the  application 
of  the  Rule  and  the  second  extends  it.  In  favor  of  restricting  its 
application  it  may  be  said  that  since  1430,  when  contingent  re- 
mainders have  been  permitted,^^  subject,  however,  to  being  de- 
stroyed by  the  termination  of  the  preceding  freehold  estate  be- 
fore the  remainder  vests,  the  Ride  in  Shelley's  Case  defeats  the 
expressed  intent  and  causes  a  remainder  to  the  "heirs  of  A"  to 
be  a  remainder  to  A  in  fee.  Where  the  rule  of  destructibility  of 
contingent  remainders  has  been  abolislifid  there  is  no  excuse  what- 
ever for  thus  defeating  the  expressed  intention  of  the  settlor. 
On  the  other  hand,  it  is  argued  that  a  contingent  interest  in 
unascertained  persons,  especially  where  those  interests  are  legal, 
and  especially  where  contingent  remainders  are  no  longer  de- 
structible, leaves  the  title  in  a  highly  inconvenient  state,  and 

Fowler  i;.  Black,  136  111.  ;363;  Wiu-  ^'  [1892]   2  Ch.  173. 

ter  V.  Dibble,  251  111.  200.  as  Williams,  Real  Prop.,  412,  413; 

S'l  Doc    V.   Lamiiifj,   2   Burr.   1100;  Gray's    Rule    ajjainst    Perpetuities, 

Crump  V.  Norwood,  7  Taunt.  362.  §  134. 

483 


§  426]  FUTURE    INTERESTS  [Ch.    XVII 

that  it  is  a  valuable  rule  which  will  at  once  vest  the  whole  fee 
in  a  living  person  and  destroy  the  contingent  remainder  or  ex- 
ecutory interest. 

§  426.  If  a  third  theory  be  desired  which  will  reconcile  at 
least  all  the  English  cases  it  must  be  formulated  something  like 
this:  The  Rule  in  ShcUey's  Case  only  applies  when  "heirs"  in 
the  remainder  to  heirs  is  used  as  a  word  of  limitation  and  not 
of  purchase.  But  whether  the  word  "heirs"  is  so  used  or  not 
is  not  left  to  any  ordinary'  process  of  construction,  but  is 
determined  by  certain  results  arbitrarily  fixed  by  certain  speci- 
fied adjudications  which  become  a  part  of  the  Rule  itself.  Thus 
"heirs"  in  the  plural  must  always  be  taken  as  a  word  of  limita- 
tion. It  makes  no  difference  that  words  of  limitation  are  super- 
added, which  as  a  matter  of  interpretation  show  that  "heirs" 
in  the  remainder  to  heirs  was  used  as  a  word  of  purchase.  Some 
American  cases  to  the  contrary  make  the  mistake  of  assuming 
that  whether  "heirs"  in  the  plural  is  used  as  a  word  of  pur- 
chase or  of  limitation  was  a  question  of  construction  and  not  the 
subject  of  a  rule  quite  as  arbitrary  as  the  Rule  in  Shelley's  Case 
itself.  So  "heir"  (in  the  singular)  standing  alone  in  a  re- 
mainder to  the  heir  of  the  life  tenant  must  be  taken  as  a  word 
of  limitation,  so  that  the  Rule  applies;  but  if  to  "heir"  in  the 
singular  words  of  limitation  be  superadded,  the  special  context 
is  sufficient  to  show  that  "heir"  in  the  singular  was  used  as 
a  word  of  purchase  and  the  Rule  in  Shelley's  Case  will  not  ap- 
ply. Of  course,  this  so-called  reconciling  theory  is  not  a  ra- 
tional explanation  of  the  cases  at  all,  since  it  is  founded  on  an 
arbitrary  assumption  as  to  the  meaning  to  be  given  to  the  word 
"heir"  or  "heirs"  in  order  to  make  the  particular  case  fit 
the  theory.  The  moment  it  is  said  that  the  Rule  in  Shelley's 
Case  does  not  apply  unless  "heirs"  in  the  remainder  is  used 
as  a  word  of  limitation  and  not  as  a  word  of  purchase,  but  that 
there  is  an  arbitrary  rule  that  "heirs"  in  a  remainder  to  the 
heirs  of  the  life  tenant  must  be  taken  as  a  word  of  limitation 
overriding  a  context  which  rationally  makes  it  a  word  of  pur- 
chase, we  know  that  we  are  dealing  with  the  law's  roundabout 
way  of  saying  that  the  Rule  applies  even  though  the  word  heirs 
is  used  as  a  word  of  purchase.  All  the  results,  therefore,  which 
introduce  an  arbitrary  assumption  that  the  word  "heirs"  is 
used  as  a  word  of  limitation  and  therefore  the  Rule  applies,  are 

484 


Ch.  XYII]  rule  in  Shelley's  case  l§  427 

really  applications  of  the  theory  that  the  rule  applies  when 
the  word  heirs  is  used  as  a  word  of  purchase.  On  the  other 
hand,  the  results  based  upon  the  fact  that  some  special  context 
shows  that  "heir"  or  "heirs"  was  used  as  a  word  of  purchase 
so  that  the  Rule  does  not  apply,  are  applications  of  the  theory 
that  the  Rule  does  not  apply  unless  the  word  "heirs"  be  in 
fact  used  as  a  word  of  limitation.  Each  theory  in  every  gene- 
ration seems  to  have  had  its  advocates.  Each  has  captured 
results  which  are  recognized  as  law.  Neither  seems  to  have 
triumphed  entirely  over  the  other. 

§  427.  In  American  jurisdictions  the  situation  is  apt  to  be 
chaotic  in  the  extreme:  When  there  is  a  tendency  to  adopt 
the  second  theory  the  opportunities  for  logically  extending  the 
rule  of  Ardiei-'s  case  ^^  are  considerably  increased.  It  may  be 
argued  here  that  since,  under  the  usual  American  statutes  on 
descent,  there  is  no  longer  one  single  heir  but  always  a  provi- 
sion for  several  heirs  to  take  as  tenants  in  common,  the  use  of 
the  word  "heirs"  in  the  plural  is  just  the  same  as  the  use  in 
England  of  the  word  "heir"  in  the  singular.  Hence,  "heirs" 
in  the  plural  in  this  country  does  not  have  any  stronger  pri- 
mary meaning  as  a  word  of  limitation  than  "heir"  in  the  sin- 
gular does  in  England.^  On  the  other  hand,  when  the  Rule  in 
Shelley's  Case  is  applied  in  this  country  to  the  case  where  heirs 
in  the  plural  is  coupled  with  words  of  limitation  or  any  other 
special  context  which  showed  that  it  was  used  as  a  word  of  pur- 
chase, the  first  theory  is  very  clearly  sustained,  because  the 
added  rule  that  "heirs"  must  be  taken  as  a  word  of  limitation 
appears  the  more  arbitrary  and  the  more  indefensible  from  the 
point  of  view  of  the  application  of  rational  principles  of  con- 
struction than  it  does  in  England.  It  is,  however,  impossible 
to  say  that  any  theory  bearing  upon  the  problem  here  presented 
has  any  standing  in  American  jurisdictions.  The  whole  matter 
is  open  to  contest.  P]ven  where  some  results  have,  been  settled 
in  accordance  with  one  view,  it  does  not  follow  that  others  will 
be.  If  the  course  of  action  followed  by  the  English  Courts  be 
imitated  there  should  be  a  fair  division  of  results  between  the 
two  theories,  but  what  theory  will  get  what  result  cannot  be 

99  1  Co.  66b. 

1  ^tna   Life   Ins.   Co.   v.  Hoppin, 
249  111.  406;   214  Fed.  928. 

485 


^  428]  FUTURE   INTERESTS  [ClI.    XVII 

kuowii  ill  advaiK'C.  Miu-h,  if  not  everything,  will  depend  upon 
the  temper  of  the  court  Avhen  the  point  comes  up  for  decision. 
It  is  even  possible  that  with  respect  to  the  same  point  a  given 
court  may  lean  toward  a  result  founded  upon  one  view  at  one 
time  and  toward  an  opposite  result  founded  upon  the  other  view 
at  another  time. 

§428.  The  cases  in  Illinois :  In  Butler  v.  Htiestis- the  limi- 
tation after  the  life  estate  was  in  these  words:  "The  reversion 
and  fee  thereof  to  the  heirs  of  her  body  at  and  after  her  de- 
cease." The  Rule  in  Shelley's  Case  was  held  not  to  apply.  The 
special  context  consisting  principally  of  the  use  of  the  word 
"fee"  in  the  phrase  "the  reversion  and  fee  thereof"  was  held 
to  indicate  that  heirs  of  the  body  was  to  be  taken  as  a  word  of 
purchase  and  not  as  a  word  of  limitation."^  This,  of  course,  pro- 
ceeds upon  the  first  theory.-*  In  Fowler  v.  Black,-"  however,  we 
have  the  remainder  limited  in  these  words:  "and  upon  the 
death  of  said  party  of  the  second  part  said  premises  to  be  held 
in.  fee  simple  by  his  heirs  and  their  assigns  forever."  Here  the 
Rule  was  applied.  The  court  said:  "There  is  nothing  in  the 
deed  which  can  be  held,  either  expressly  or  by  implication,  to 
limit  or  qualify  the  word  '  heirs, '  or  to  give  to  it  any  other  than 
its  ordinary  legal  significance,  viz.,  those  persons,  whoever  they 
may  be,  upon  whom  the  law  at  the  death  of  the  ancestor  would 
cast  the  inheritance,  thus  including  all  possible  heirs,  to  take 
in  succession  from  generation  to  generation,  under  the  name 
of  heirs  of  the  ancestor."  On  the  whole  this  result,  together 
with  the  language  used,  supports  the  second  theory-.  The  court 
in  effect  says  that  when  the  word  heirs  is  used  as  a  word  of 
purchase,  meaning  the  person  or  persons  designated  by  the 
statute  as  heirs  at  law  of  the  life  tenant,  it  must  be  taken  to 
embrace  the  whole  line  of  inheritable  succession  as  a  word  of 
limitation,  and  hence  the  Rule  in  Shelley's  Case  applies.  Of 
course,  the  second  step  is  a  fiction.  The  plain  truth  is  that  when 
heirs  is  used  as  a  word  of  purchase  so  as  to  create  a  contingent 

=  68  111.  594.  remainder    was    to    "heirs    of    the 

3  See  also  McCampbell  v.  Masou,  body. ' '     Ante,    §  418.      This   seems 

151  111.  500.  to    be    no    longer    the    law    in    this 

*  Another    ground    for    the    deci-  state.     Ante,  §  420. 

slon  was  that  the  Rule  in  Shelley's  5  136  111.  363. 

Case  had  no  application  where  the 

486 


ClI.    XVII]  RULE    IN    SIIELLrv'S   CASE  [§428 

remainder  in  the  heirs  of  the  life  tenant  as  purchasers,  the  Rule 
applies.  However,  in  .Etna  Life  Ins.  Co.  v.  Jloppin,''  where  the 
lemainder  was  to  "the  heire  of  the  body  of  the  said  Sarah  Hop- 
pin  [the  life  tenant],  their  heirs  and  assig-ns,"  one  ground  for 
the  decision  of  the  court  was  that  the  Rule  in  Shelley's  Case  did 
not  apply  because  "heirs"  in  the  phrase  "heirs  of  the  body"  was 
used  as  a  word  of  purchase  by  reason  of  the  added  words  of 
limitation.  The  court  refers  to  the  passages  from  Preston  on 
Estates/  Fearne  on  Contingent  Remainders,^  and  Butler's  Notes 
to  Coke  on  Littleton,'-*  which  lay  it  down  that  the  Rule  does 
not  apply  unless  the  word  "heirs"  be  used  as  a  word  of  limita- 
tion, and  then  the  court  relies  upon  Archer's  case,^'^  Evans  v. 
Evans,^^  DeVaughn  v.  Hutchinson, ^'-^  De-Vaughn  v.  DeVaughn,^-'- 
Taylor  v.  Cleary,^*  and  Peer  v.  Hennion^^  for  the  proposition 
that  when  words  of  limitation  are  added  to  a  remainder  to  heirs 
of  the  body,  "heirs"  is  used  as  a  word  of  purchase  and  not 
of  limitation.  This,  of  course,  is  all  in  support  of  the  first 
theory.  The  rehearing  in  jEtna  Life  Ins.  Co.  v.  Hoppin^^  was 
denied  at  the  April  Term,  1911.  At  the  June  Term  of  the 
Court  in  the  same  year  a  decision  was  made  in  the  case  of 
Winter  v.  Dibble.^'  There  the  remainder  was  limited  in  these 
words:  after  the  death  of  the  life  tenants  "the  property  shall 
descend  to  their  [the  life  tenants']  respective  heirs  in  fee  simple 
absolute."  It  was  here  strongly  pressed  upon  the  court  that 
the  words  "in  fee  simple  absolute"  showed  that  the  word 
"heirs"  was  used  as  a  word  of  purchase  and  not  of  limita- 
tion, and  therefore  the  Rule  should  not  apply.  The  passages 
from  Preston,  Fearne,  and  Butler,  which  the  court  referred 
to  in  ^Etna  Life  Ins.  Co.  v.  Hopp-in,  and  also  the  cases  relied 
upon  in  that  case,  were  called  to  the  attention  of  the  court,  to- 
gether with  the  first  theory.  Nevertheless,  the  court,  relying 
upon  Fowler  v.  Black,  held  the  rule  did  apply,  thus  in  fact  pro- 
ceeding upon  the  second  theory.  In  Carpenter  v.  Hubbard^^ 
there  was  a  devise  to  the  testatrix's  husband,  Oilbert  Hubbard, 

e249  111.  406;  214  Fed.  928.  123    App.  Cas.    (D.   C.)    50. 

7  p.  282.  "29   Gratt.    (Va.)    448. 

8  p.  189.  1=77  N.  J.  L.  693. 

9  p.  y77a.  i«249  111.  406;  214  Fed.  928. 
101  Co.  66b.  1*251  111.  200. 

n  [18921   2  Ch.  173.  'S26.3  111.  571. 

12  165  U.  S.  566. 

487 


§  428]  FUTURE   INTERESTS  [ClI.    XVII 

^vitll  a  remainder  for  life  to  the  children  of  the  testatrix  and 
Gilbert  Hubbard,  with  an  ultimate  remainder  to  the  heirs  of 
Gilbert  Hubbard.  A  great  effort  was  made  to  show  by  the  ap- 
plication of  the  ordinary  rules  of  construction  that  "heirs  at 
law"  was  used  as  a  word  of  purchase,  meaning  those  persons 
who  would  have  been  the  heirs  at  law  of  Gilbert  Hubbard  had 
he  died  at  the  period  of  distribution — thus  excluding  his  chil- 
dren as  his  heirs  at  law — and  that,  therefore,  the  Rule  in  Shel- 
ley's Case  did  not  apply.  This,  however,  was  denied  and  it  was 
held  that  the  Rule  did  apply.  In  Moore  v.  Reddel,^^  the  limita- 
tions were  to  A  for  life,  remainder  "to  the  heirs  of  the  bod}^  of 
A  and  their  assigns  forever."  Surely  the  words  "and  their 
assigns  forever"  were  superadded  words  of  limitation  sufficient 
under  section  13  of  our  Act  on  Conveyancing  to  show  an  intent 
that  the  heirs  of  the  body  of  A  were  to  take  the  fee.  This  point 
was  not  made  bj-  counsel.  Indeed,  it  was  assumed  both  by  coun- 
sel and  the  court  that  the  Rule  in  Shelley's  Case  did  apply. 

It  might  have  been  urged  in  attempting  to  reconcile  the  re- 
sults in  the  foregoing  cases  that  the  superadded  words  of  limi- 
tation which  will  prevent  the  application  of  the  Rule  in  Shelley's 
Case  must  be  the  words  of  limitation  of  the  common  law  and 
that  therefore  the  superadded  words  of  limitation  must  in- 
clude the  word  "heirs."  Therefore,  superadded  words  such 
as  "in  fee  simple,"  or  "assigns  forever,"  would  be  insufficient, 
while  "heirs  and  assigns"  w^ould  be  effective.  Technical  as 
such  a  distinction  would  appear  to  be,  there  is  some  authority 
for  it.2<^  The  recent  case  of  Benson  v.  Tamner,^^  however,  now 
removes  this  ground  for  reconciling  the  cas(^s.  There  the  limi- 
tations were  to  A  for  life  "remainder  in  fee  simple  to  the  heirs 
of  her  body."  It  was  held  that  the  superadded  words  of  limi- 
tation "in  fee  simple"  were  sufficient  to  prevent  the  applica- 
tion of  the  Rule  in  Shelley's  Case?^  The  cases,  therefore,  leave 
our  Supreme  Court  in  this  position :  If  the  remainder  is  to 
"heirs  of  the  body,"  the  first  theory  would  be  applicable,  and 

19  259  111.  36.  the  first  taker  had  a  life  estate  or 

20  Fuller  v.  Chamier,  L.  E.  2  Eq.  a  fee.  It  was  held  that  he  had  a 
682   (1866).  life  estate.     This  was  correct  wheth- 

21276  111.  594;   12  111.  Law  Rev.,  er   the  Rule   in   Shelley's   Case   ap- 

564.  plied  or  not,  for  the  limitations  were 

22  In    Doney   v.    Clipson,   285    111.  to  A  for  life  and  then  to  the  heirs 

75,   the   only   question    was  whether  of  his  body  in  fee  simple  forever. 

488 


Cii.  XVII]  livi^.  IN  Shelley's  case  (H29 

a  special  context  which  showed  that  heirs  of  the  body  was,  as  a 
matter  of  construction,  used  as  words  of  purchase  and  not  as 
words  of  limitation,  would  be  sufificient  to  prevent  the  Rule  from 
apply ing.23  But  if  the  remainder  is  to  "heirs"  generally,  the 
second  theory  is  applicable  and  the  Rule  applies  precisely  when 
heirs  is  used  as  a  word  of  purchase,  meaning  the  person  or  per- 
sons who  would  be  entitled  to  take  by  the  Statute  on  Descent 
from  the  life  tenant.  It  would  make  no  difference  that  the  super- 
added words  of  limitation  included  the  word  "heirs."  2^  This 
is  simply  a  new  way  of  dividing  the  results  obtained  equally 
between  the  first  and  second  theories.  It  is  hard  to  say  that 
it  is  not  just  as  rational  as  the  division  of  results  which  the 
English  cases  have  reached.  The  important  thing  always  is 
that  neither  theory  should  triumph  over  the  other.  There  should 
always  l)e,  in  every  jurisdiction,  the  possibility  of  getting  re- 
sults according  to  each  theory  until  all  possible  variations  which 
may  occur  have  been  passed  upon  and  each  theory  awarded  the 
results  to  which  it  is  to  be  entitled  for  all  time  to  come. 

Topic  4. 

Where  the  Interests  Are  Equitable — Executory  Trusts. 

§  429.  The  Rule  applies  where  the  limitations  are  equitable : 
The  Rule  in  Shelley's  Case  was  of  purely  feudal  origin,  dating 
at  least  from  the  year  1324.25  Modern  equitable  interests  in 
land,  however,  commenced  about  the  middle  of  the  17th  cen- 
tury .^'^  It  is  not  surprising,  therefore,  that  at  the  beginning  of 
the  18th  century  it  should  still  l)e  a  matter  of  doubt  under  the 
decisions  whether  the  Rule  in  Shelley's  Case  would  be  held  to 
apply  where  the  limitations  were  equitable.  As  a  matter  of 
fact  Lord  Hardwicke  undertook  in  Bagshaw  v.  Spcucerr'  to 
hold  the  Rule  in  Shelley's  Case  would  not  apply  w^here  the  limi- 

23  In  view  of  this,  the  assump-  aiit]  in  accordance  with  the  laws  of 
tion  by  counsel  in  Moore  v.  Eedilel,  Illinois."  Quaere,  whether  the  Rule 
259   111.   36,   that   the   Rule   did   not       in  Shelley's  Case  applied. 

apply,  was  unfortunate.  25  Ante,  §§34,  35. 

24  In  Geist  1;.  Huffendick,  272  111.  26<'The     Origin     of     Uses     and 
99,  where  it  was  provided  that  the  Trusts,"  by  Professor  J.  B.  Ames, 
remainder    for    the    life    of    another  21  Harv.  Law  Rev.,  270,  271. 
"shall  descend    [from   the  life   ten-  -- 1  A'es.  Sr.   142. 

489 


§  430]  FUTURE   INTERESTS  [Ch.    XVII 

tations  were  equitable.  In  that  ease  "heirs''  in  a  limitation 
to  heirs  of  the  body  was  held  to  be  used  as  a  word  of  purchase 
and  was  given  effect  as  such.  If  speculations  already  set  out 
as  to  the  origin  of  the  Rule  in  Slielleif's  Case,^^  are  correct,  it 
is  submitted  that  there  was  ample  justification  for  Lord  Hard- 
wicke's  position.  Nevertheless,  Lord  Hardwicke's  decision  in 
Bdffshaic  v.  Spoiccr  was  overruled  and  it  became  settled  in  Eng- 
land that  the  Rule  in  Shelley's  Case  would  apply  to  equitable 
interests  in  precisely  the  same  way  that  it  did  to  legal. "^  Such 
is  clearly  the  Rule  in  this  state.-^^ 

§  430.  The  Rule  does  not  apply  where  the  trust  is  executoiy : 
At  the  beginning  of  the  18th  century  when  it  was  still  uncer- 
tain whether  the  Rule  in  Shelley's  Case  would  apply  to  equitable 
interests,  it  became  settled  that  if  in  addition  to  the  limitations 
being  equitable,  there  was  also  an  executory  direction  or  trust, 
that  a  settlement  should  be  made  by  the  trustee  so  as  to  give 
to  A  an  estate  for  life  and  a  remainder  to  his  heirs  or  the  heirs 
of  his  body,  the  Rule  in  Shelley's  Case  would  not  apply.  A 
court  of  chanceiy  in  directing  what  settlement  should  be  made 
would  require  one  which  would  carry  out  an  expressed  intent, 
according  to  which  heirs  or  heirs  of  the  body  were  to  take  as  pur- 
chasers.31  This  was  the  holding  that  the  Rule  in  Shelley's  Case 
would  not  apply  if  the  trust  was  executory.  It  was,  it  is  be- 
lieved, a  product  of  the  original  hesitation  of  the  English  Chan- 
cery court  to  apply  the  Rule  in  Shelley's  Case  to  equitable  limi- 
tations. Lord  Hardwicke's  holding  in  Bagshaw  v.  Spencer ^^ 
to  that  effect  was  founded  upon  Papillon  v.  Voke,^^  which  stands 
today  as  the  principal  authority  in  favor  of  the  proposition  that 
the  Rule  in  Shelley's  Case  does  not  apply  in  the  case  of  an  ex- 
ecutory trust.  The  holding,  however,  that  the  Rule  in  Shelley's 
Case  does  not  apply  where  the  trust  is  executory,  now  persists 
as  an  exception  to  the  general  rule  that  the  Rule  in  Shelley's 

2»  Ante,  §§34,  35.  Carpenter  v.  Hubbard,  263  111.  571, 

29  Wright  v.  Pearson,  1  Eden  119;  580;  Nowlan  v.  Nowlan,  272  111. 
Jones  V.  Morgan,  1  Bro.  C.  C.  206.  526. 

30  Baker  v.  Scott,  62  111.  86,  90;  3i  PapiUon  v.  Voice,  2  P.  Wms. 
Ryan  v.  Allen,  120  111.  648,  653;  471  (1728);  Lreonard  v.  Sussex,  2 
Glover  v.  Gondell,  163  111.  566;  Mc-  Vern.  526  (1705);  1  Preston  on 
Fall   V.   Kirkpatrick,   236   111.    281;  Estates,  355. 

Lord    V.    ComBtock,    240    111.    492;  32 1  Ves.  Sr.  142. 

Wallace  v.   Foxwell,   250  ni.    616;  33  2  P.  Wme.  471  (1728). 

490 


Cn.  XVII]  RULE  IN  Shelley's  case  [§432 

Case  applies  where  the  interests  are  equitable.  Our  Supreme 
Court  has  clearly  recognized  this  exception. ^^ 

§  431.  What  trusts  axe  executory — Two  views  not  generally 
adopted:  It  has  been  held  that  a  trust  which  was  merely 
active  as  distinguished  from  a  passive  or  dry  trust,  was  execu- 
tory, so  that  the  Rule  in  Shelley's  Case  would  not  apply  and 
"heirs"  in  a  limitation  to  the  heirs  of  the  equitable  life  tenant 
must  be  given  effect  as  a  word  of  purchase.-^''  This  is  in  effect 
an  adherence  to  Lord  Hardwicke's  position  that  the  Rule  in 
Shelley's  Case  never  would  apply  where  the  interests  were 
equitable.  Such  a  position  is,  of  course,  untenable  in  England 
since  Bagshaiv  v.  Spencer  was  overruled.'"^  It  cannot  be  main- 
tained in  this  state  in  view  of  the  eases  holding  that  the  Rule 
in  Shelley's  Case  regularly  applies  where  all  the  limitations  are 
equitable.  •''' 

It  has  been  held  also  that  the  trust  is  executory,  so  that  the 
Rule  in  Shelley's  Ca^e  will  not  apply  if  the  trust  is  an  active 
one,  and  there  is  a  provision  that  the  trustee  shall  at  the  ter- 
mination of  the  equitable  life  estate  convey  the  legal  estate  to 
the  heirs  of  the  equitable  life  tenant. ^^  But  this  view  of  what 
is  an  executory  trust  so  that  the  Rule  in  Shelley's  Case  will  not 
apply  is  denied. 3^  It  is  in  fact  inconsistent  with  Lord  v.  Corn- 
stock.-*^  It  would  seem  on  the  whole  to  be  a  sort  of  half  way 
attempt  to  maintain  Lord  Hardwicke's  position  that  the  R^de 
in  Shelley's  Case  would  not  apply  to  equitable  limitations  at  all. 

§  432.  The  generally  accepted  view:  The  view  of  the  Eng- 
lish cases,  followed  by  at  least  one  well  considered  American 
decision^'  as  to  what  trusts  are  executory,  so  that  the  Rule  in 

34  Baker  v.  Scott,  62  111.  86,  102 ;  ,  38  Edmondson  v.  Dyson,  2  Ga. 
Bennett  v.  Bennett,  217  111.  434,  307;  Bucklin  v.  Creighton,  18  R.  I. 
445;  Geist  v.  Huffendick,  272  111.  325;  Nightingale  v.  Phillips,  29  R. 
99.  But  compare  "Wicker  i'.  Ray,  I.  175.  See  also  Lawrence  i'.  Law- 
118  111.  472,  explained,  post,   §433.  renee,  181  111.  248;  Kirby  v.  Brown- 

35  Siceloff  V.  Redman's  Adm.,  26  lee,  7  Oh.  Cir.  Dec.  460. 

Ind.  251,  262;  Wagstaff  v.  Lowerre,  39  Gushing  v.  Blake,  30  N.  J.  Eq. 

23  Barb.  209 ;  Carrigan  r.  Drake,  36  689.    See  also  Tillinghast  r.  Cogges- 

S.  C.  354,  366;   Porter  v.  Doby,  19  hall,  7  R.  I.  383;  Angell,  Petitioner, 

S.  C.  Eq.  49;  Reynolds  i;.  Reynolds,  13  R.  I.  630. 

61  S.  C.  243.  ••o  240  111.  492. 

30  Ante,  §  429.  ^i  Gushing  v.  Blake,  30  N.  J.  Eq. 

:i- Ante,  §420.  689. 

491 


§  433]  FUTURE   INTERESTS  [Ch.    XVII 

Shelley's  Case  will  not  apply,  may  thus  be  stated:  Even  if  the 
terms  of  the  trust  require  a  settlement  or  conveyance  to  be  ex- 
ecuted by  a  trustee,  yet  if  the  testator  has  acted  as  his  own 
conveyancer  and  defined  precisely  the  settlement  to  be  made, 
then  a  court  of  equity  has  nothing  to  do  but  to  direct  a  settle- 
ment according  to  the  directions  and  the  trust  is  not  executory 
in  any  sense  which  prevents  the  application  of  the  Rule  in  Shel- 
ley's Case.  The  trust  is  executory,  so  that  the  Rule  in  Shelley's 
Case  does  not  apply  only  where  a  settlement  is  to  be  executed 
or  a  conveyance  made  by  the  trustee  and  where  there  is  an  in- 
formal or  imperfect  indication  as  to  what  that  settlement  is  to 
be,  or  where  the  language  used  to  describe  the  settlement  to  be 
made  is  not  intended  by  the  settlor  or  testator  to  be  taken  in 
its  strict  legal  sense. 

This  statement  of  what  active  trusts  are  executory  and  what 
are  not,  so  far  from  eliminating  difficulties,  is  the  source  of 
them.  It  now  becomes  a  question  of  construction  to  determine 
whether  the  testator  "has  been  his  own  conveyancer"  or  whether 
he  has  used  language  not  in  its  strict  legal  sense,  but  informally 
and  imperfectly  as  the  mere  suggestion  for  a  settlement  or  con- 
veyance to  be  made  in  apt  language  to  carry  out  his  intention. 

§  433.  Suggestions  of  the  cases  in  aid  of  the  problem  of 
construction:  First:  When  there  is  a  direction  that  a  con- 
veyance be  made  by  the  trustee  to  contain  certain  limitations,' 
an  inference  at  once  arises  that  the  gift  is  imperfect  and  the 
language  describing  the  limitations  to  be  made  is  informal  and 
that  the  testator  or  settlor  has  not  been  his  own  conveyancer.^^ 
This  suggestion  is  sound  because  there  is  ordinarily  no  reason 
for  the  testator  or  settlor  directing  such  a  conveyance  to  be 
made  if  he  is  intending  to  act  as  his  own  conveyancer. 

Second:  The  usual  cases  where  the  testator  is  held  to  have 
acted  as  his  own  conveyancer,  although  directing  the  execution 
of  a  future  instrument,  are  (1)  where  the  settlement  to  be 
executed  is  designated  by  reference  to  another  instrument  con- 

42  In   Davenport  v.  Davenport,    1  fully  all  the  details  of  his  scheme, 

Hem.  &  M.  775,  777,  Sir  Page  Wood,  and    endeavors    to    give    the    fullest 

V.  C,  said:    "Where  a  future  deed  possible   effect  to   his   directions   by 

is   directed,   the   court  assumes   that  the  mode   in  which   it  carries  them 

the    testator    may   not    have    stated  into  execution." 

492 


Ch.  XVII]  RULE  IN  Shelley's  case  [§433 

taining  full  and  complete  limitations,^'^  and  (2)  where  the  di- 
rection is  very  short  and  simple — such  as  a  direction  to  convey 
to  A  and  the  heirs  of  his  body.^* 

Third:  It  is  regularly  held  that  when  there  is  a  direction 
to  convey  to  A  for  life  with  a  remainder  to  A's  heirs  or  a  re- 
mainder to  the  heirs  of  A's  body,  an  intention  is  manifested  not 
to  use  the  words  in  their  strict  legal  sense  and  it  follows,  there- 
fore, tiiat  the  expression  is  regarded  as  ijiformal  and  imperfect 
and  merely  suggestive  of  what  the  testator  or  settlor  desires  to 
have  done  by  an  instrument  appropriately  framed  to  carry  out 
his  purpose.  It  is  believed  that  the  English'*"^  and  American ''^ 
cases  support  without  dissent  this  position. 

The  logical  basis  for  this  position  is  as  follows:  It  is  con- 
ceded that  the  Ride  in  Shelley's  Case  always  defeats  the  inten- 
tion as  expressed,  by  placing  upon  the  language  used  by  the 
testator  or  settlor  a  legal  effect  different  from  the  ordinary 
meaning  of  the  words,  and  the  meaning  actually  placed  by  the 
testator  or  settlor  upon  the  words  as  used.  From  this  it  neces- 
sarily follows  that  whenever  there  is  a  direction  that  trustees  are 
to  make  a  conveyance  or  settlement  upon  A  for  life  and  then  to 
the  heirs  of  A,  the  words  actually  used  by  the  testator  or  settlor 
are  not  used  in  accordance  with  their  strict  legal  import.  The 
legal  effect  of  the  words  which  results  from  applying  the  Rule 
in  SJielley's  Case  being  what  it  is,  and  the  actual  expressed  in- 
tent of  the  testator  being  what  it  is  and  different  from  the  legal 
effect  of  the  words,  it  follows  that  the  words  are  necessarily  used 
informally  and  imperfectly  as  suggesting  what  the  testator  or 
settlor  desires  to  have  accomplished  and  not  at  all  because  the 
testator  is  acting  as  his  own  conveyancer.  Hence,  whenever  the 
direction  is  to  trustees  to  make  a  conveyance  with  limitations  to 
A  for  life  and  then  to  A's  heirs,  the  trust  is  executory  so  that 
the  Rule  in  Shelley's  Case  will  not  apply. 

"Theobald  on  Wills,  7th  ed.  725;  Sim.  264;   Bastard  v.  Probv,  2  Cox 

Cliristio   r.   Gosling,   L.   R.    1   H.   L.  6;   Eochfort  v.  Fitzmaurice,  2  D.  & 

(Enor.  &  ir.  App.)   279,  War.  1. 

•»<  Scale  V.  Seale,  1  P.  Wms.  290.  •le  Tallman  r.  Wood,  26  Wend.  9; 

45  Theobald  on  Wills,  7th  ed.  725,  Wood  v.  Burnham,  6  Paige  (N.  Y.) 

726;   Papillon  v.  Voice,  2   P.  Wms.  513;   Hanna  v.  Hawes,  45  la.  437; 

471;   Parker  v.  Bolton,  5  L.  J.   Ch.  Saunders  v.  Edwards,  55  N.  C.  134; 

N.    S.    98;    Duncan    v.    Bluett,    Ir.  Berry    v.    Williamson,    11    B.    Mon. 

Rep.  4  Eq.  469;  Hadwen  v.  Hadwen,  (Ky.)   245,  258,  261. 
23  Beav.  551 ;    Stoncr  v.  Curweu,  5 

493 


^  434]  FUTURE   INTERESTS  [ClI.    XVII 

The  only  ease  found  vvliieh  seems  at  all  opposed  to  this  is 
that  of  WicTxer  r.  Ray^~  In  that  case  there  was  a  direction 
that  the  oue-foiirth  devised  to  the  testator's  daughter  Harriet 
"shall  be  so  secured  to  her  that  she  shall  enjoy  it  during  her 
natural  life,  and  after  her  decease  then  to  her  right  heirs  for- 
ever." The  testator  directed  that  the  one-fourth  interest  of  his 
grandchildren,  Jennie  and  Eliza,  be  secured  to  them  "in  like 
manner."  He  clothed  his  executors  "with  power  to  secure  to 
my  daughter,  Harriet,  the  one-fourth  interest  in  my  estate  as 
above,  and  also  to  secure  to  my  grandchildren  their  interest  of 
one-fourth."  It  is  submitted  that  here  was  most  clearly  an 
executory'  trust,  and  yet  the  court  held  that  the  grandchildren, 
Jennie  and  Eliza,  had  the  absolute  interest  in  fee.  The  briefs 
of  counsel  as  reported  contain  no  suggestion  whatever  with  re- 
spect to  the  rule  that  the  Rule  in  Shelley's  Case  does  not  apply 
where  the  trust  is  executory.  The  court  did  not  refer  to  it. 
The  court  seems  to  have  regarded  the  will  itself  as  vesting  the 
fee  in  the  grandchildren  and  the  subsequent  words  as  very 
doubtful  in  their  effect  of  cutting  down  the  fee  to  a  life  estate, 
and  then  merely  added  in  the  most  offliand  manner  that  if  the 
subsequent  words  did  cut  down  the  fee  to  a  life  estate,  the  Rule 
in  Shelley's  Case  applied.  It  is  submitted  that  if  Wicker  v.  Ray 
stands  in  any  degree  for  the  proposition  that  the  Rule  in  Shel- 
ley's Ca^e  applies  where  the  trust  is  executory,  or  that  the  trust 
is  not  an  executory  trust  so  that  the  Rule  will  apply  where 
there  is  a  direction  to  trustees  to  make  a  conveyance  with  limi- 
tations in  favor  of  A  for  life  and  then  to  A's  heirs  or  the  heirs 
of  A 's  body,  it  is  out  of  line  with  all  the  authorities  and  should 
not  be  followed  as  the  law  of  this  state. 

Topic  5. 

The  Rule  Does  Not  Apply  to  Personal  Property, 

§  434.  Conclusion  stated :  If  the  Rule  in  Shelley's  Case  were 
a  rule  of  construction  it  might  fairly  be  argued  that  it  would 
apply  to  the  appropriate  limitations  of  personal  property.  But 
the  Rule  arose  as  early  as  1324  in  England  to  create  limitations 
of  freeholds.'*^  It  was  dictated  by  purely  feudal  considerations 
which  have  had  little  or  no  reality  since  the  sixteenth  century. 

47  118  111.  472.  *»Ante,  §§34,  35. 

494 


Ch.  XVIIJ  rui^  in  Shelley's  case  [§435 

It  has  long  been  known  as  a  rule  of  law  defeating  a  clearly 
expressed  intent.  For  a  short  time  only  in  the  eighteenth  cen- 
tury an  attempt  was  made  practically  to  destroy  it  by  turning  it 
into  a  rule  of  construction.  This  failed  in  England,  and  has 
failed  in  Illinois.'*''^  Since  future  interests  in  personal  property 
were  recognized  as  valid  in  the  seventeenth  century ,^*J  long  after 
feudal  considerations  which  were  the  basis  for  the  Rule  in 
Shelley's  Case  had  ceased  to  exist,  and  since  feudal  considera- 
tions were  inapplicable  anyway  to  limitations  of  personal  prop- 
erty, there  never  was  any  reason  why  the  Rule  in  Shelley's  Case 
should  apply  to  personal  property.  On  the  contrary  there  was 
every  reason  why  it  should  not.  An  examination  of  the  au- 
thorities will  demonstrate  that  it  does  not  apply  to  personal 

property. 

§  435.  Where  the  bequest  is  to  A  for  life  and  then  to  A's 
"executors  and  administrators":  Here  it  is  settled  that  A 
takes  an  absolute  int crest. ^'^  This,  however,  proceeds  upon  the 
ground  that  such  is  the  intention  actually  expressed  by  what 
amounts  to  a  gift  to  A,  and  then  to  his  estate.  That  this  result 
depends  upon  the  application  of  the  principle  of  carrying  out 
the  testator's  real  intent,  and  not  at  all  upon  the  Rule  in  Shel- 
ley's Case,  sufficiently  appears  from  Powell  v.  Boggis^-  and 
Atkinson  v.  L'Estrangc/''-^  In  both  of  these  cases  the  gift  was 
to  A  for  life  and  then  to  A's  heirs.  In  both  cases  there  was  a 
considerable  special  context  which  justified  the  court  in  taking 
"heirs"  as  meaning  "personal  representatives,"  so  that  by  the 
application  of  the  general  rule,  A  took  an  absolute  interest.  In 
both  cases,  how^ever,  the  court  proceeded  solely  upon  what  it 
found  to  be  the  real  expressed  intent,  and  denied  that  the  Rule 
in  Shelley's  Case  applied  to  personality,  or  that  the  result  reached 
was  in  any  degree  due  to  the  application  of  the  Rule  in  Shelley's 
Case.  In  Powell  v.  Boggis,  Lord  Romilly,  Master  of  the  Rolls, 
said :  "It  is  quite  true  that  the  Rule  in  Shelley's  Case  is  a  tech- 
nical rule  and  applies  only  to  real  estate.  *  *  *  There  is 
no  question  as  to  the  Rule  in  Shelley's  Case,  which  in  no  sort  of 
way  applies  to  this  case."  ^^  In  Atkinson  v.  L'Esirange,  Chat- 
terton,  V.  C,  said:    "I  do  not  rely  upon  the  Rule  in  Shelley's 

*9  Post,  §  441.  52  35  Beav.  535. 

^ojinie,  §§107,  109.  -^h.  R.  Ir.,  15  Ch.,  :U0. 

51  Theobald  on  Wills,  6th  ed.  461.  ^*  35  Beav.  535,  541. 

495 


§  436]  FUTURE   INTERESTS  [ClI.    XVII 

Case,  as  governing  this  case,  to  which  I  think  it  has  no  applica- 
tion."-^"' It  is  unfortunate  that  the  Illinois  court,  in  Glover  v. 
Condell,^"'  while  referring  with  approval  to  the  rule  that  a 
bequest,  whether  legal  or  equitable,  to  A  for  life,  and  after  his 
decease  to  his  executors,  administrators  and  assigns,  will  cause 
A  to  be  entitled  absolutely,  should  have  seemed  to  ascribe  such 
a  result  to  the  application  by  analogy  of  the  Rule  in  Shelley's 
Case. 

§  436.  Where  the  bequest  is  to  A  for  life  and  then  to  his 
"heirs":  Even  where  the  court  holds  that  "heirs"  in  the 
technical  sense  of  those  who  inherited  real  estate,  was  meant, 
we  find  it  held  that  the  interest  which  A  takes  is  limited  to  a 
life  estate,  and  a  separate  and  distinct  future  interest  in  A's 
heirs  is  recognized,  thus  repudiating  the  proposition  that  A  ob- 
tains an  absolute  interest  in  the  personalty.  The  language  of 
the  court  is  also  clear  that  the  Rule  in  Shelley's  Case  is  not  ap- 
plicable to  bequests  of  personalty.  The  principal  case  to  this 
effect  is  Smith  v.  Butcher,^"  decided  by  Jessel,  M.  R.  This  was 
followed  by  In  re  Russell  ^^  and  in  this  country  by  two  Delaware 
eases,  Gross  v.  Sheeler  ^^  and  very  recently  Jones  v.  Rees.^'^  So, 
where  the  gift  was  to  A  for  life,  with  (as  the  court  construed 
the  language)  a  future  interest  to  A's  "next  of  kin,"  A  did 
not  take  an  absolute  interest,  and  there  was  no  application  of  the 
Rule  in  Shelley's  Case  by  analogy.  On  the  contrary,  A  was  held 
to  take  a  life  interest  with  a  separate  and  distinct  future  and 
contingent  interest  to  those  who  should  turn  out  to  be  her  next 
of  kin  at  her  death.'^i 

The  case  of  Glover  v.  Condell  ^'^  does  not  seriously  militate  in 
this  state  against  the  adoption  of  Jessel's  ruling.  In  the  Con- 
dell case  the  testator  devised  personal  property  to  trustees  to 
pay  the  income  to  Albert  for  life,  and  after  his  death  "the  prin- 
cipal of  his  share  or  part  to  be  paid  to  his  heirs."  Then  fol- 
lowed a  gift  over  in  the  event  of  Albert's  death  "without  living 
heirs"  of  his  body,  to  the  testator's  wife  for  life  and  after  her 

■'''  L.  R.  Ir.  15  Ch.,  .340,  34.3.  at  262,  the  court  says  that  the  Rule 

56  163  111.  566,  587.  in  Shelley  's  Case  does  not  apply  to 

57  L.  R.  10  Ch.  Div.  113.  personal  property. 

58  52  L.  T.  R.  559.  eo  6  Penn.  (Del.)  504. 

50  7  Houst    (Del.)    280.     In  Siee-  ci  Low  v.  Smith,  25  L.  J.  Ch.,  503. 

loff  V.  Redman's  Adm.,  26  Ind.  251,  «-' 163  111.  566.. 

496 


Ch.  XVII]  Ri'LE  IN  Shelley's  case  f§436 

death  to  the  testator's  children.  Albert  died  without  leaving 
any  living  heirs  of  his  body.  The  trustees  asked  for  instructions 
and  the  court  held  that  the  gift  over  upon  Albert's  death  with- 
out living  heirs  of  his  body  was  valid  and  must  take  effect  as 
limited.  That  is  all  the  court  needed  to  hold  on  this  branch  of 
the  ease.  Against  this  view  it  was  evidently  argued  that  the  gift 
over  was  void  for  repugnancy,  because  A  took  an  absolute  in- 
terest. Tlie  court  needed  only  to  admit  for  the  sake  of  argu- 
ment that  A  did  take  an  absolute  interest,  and  then  to  make  the 
obvious  holding  that  the  executory  devise  was  valid,  overruling 
in  terms  as  it  did,  the  previous  cases  of  Ewing  v.  Barnes  ^'-^  and 
Silva  V.  HopkinsonS'-^  As  a  matter  of  fact,  that  is  all  the  court 
did.  The  court  said  in  substance  that  whether  the  Rule  in 
Shelley's  Case  be  applied,  or  whether  the  gift  be  regarded  as  to 
A  and  his  heirs,  A  would  take  the  ownership  of  the  fund  "sub- 
ject to  the  limitation  over  thereof  to  the  children  of  the  testator, 
upon  the  contingency  of  his  death  without  living  heirs  of  his 
body  at  the  time  of  his  death."  If  the  court  undertook  to  go 
l)eyond  this  and  to  say  that  Albert  did  actually  have  an  abso- 
lute interest  because  a  gift  of  personalty  to  Albert  for  life  and 
then  to  Albert's  heirs  gives  Albert  an  absolute  interest  by  the 
application  by  analog^'  of  the  Rule  in  Shelley's  Case,  it  is  mere 
obiter  dictum,  and  is  open  to  subsequent  re-examination  when- 
ever that  question  becomes  directly  involved.  It  seems,  how^- 
ever,  extremely  doubtful  whether  the  court  ever  took  any  such 
position.  It  is  worth  noticing  that  in  referring  to  the  applica- 
tion of  the  Rule  in  Shelley's  Case  by  analogy  to  personality,  the 
court  does  so  only  in  connection  with  the  supposed  gift  to  A  for 
life  and  then  to  A's  executors,  administrators  and  assigns.  In 
such  a  case,  as  we  have  seen,  the  authorities  are  agreed  that  A* 
takes  the  absolute  interest.  It  is  simply  an  unfortunate  adop- 
tion of  some  generalization  of  the  American  and  English  P^n- 
cyclopedia  of  Law,  that  leads  the  learned  judge  who  wrote  the 
opinion  of  the  court,  to  refer  to  such  a  result  as  the  application 
by  analog^'  of  the  Rule  in  Shelley's  Case.^^ 

63  156  111.  61.  to    personal    property    to    some    ex- 

6*158  111.386.  tent:    Bennett   v.    Bennett,   217    111. 

G5  In    the    following    cases    there  434;    Wallace    i'.    Foxwell,    250    111. 

are    suggestions    that    the    Rule    in  616. 

Shelley 's  Case  may  apply  by  analogy 

Kales  Fut.  Int. — 32  497 


§437]  FUTURE   INTERESTS  [Cli.    XVII 

Whatever  doubt  previous  decisions  may  have  cast  upon  the 
matter,  the  law  is  now  clearly  settled  by  the  recent  decision  of 
our  Supreme  Court  in  Lord  v.  Comstock,^'-'  whore  it  was  held 
that  the  Rule  in  Shelley's  Case  as  such  did  not  apply  to  personal 
property,  and  that  the  limitations  of  equitable  interests  in  per- 
sonal property  in  substance  to  A  for  life  and  then  to  A's  heirs, 
conferred  upon  A  only  a  life  interest,  with  a  future  interest  to 
A's  heirs  according  to  the  expressed  intent  of  the  testator.^'^ 

§  437.  Where  there  is  a  bequest  to  A  for  life,  with  a  re- 
mainder to  "the  heirs  of  A's  body":  Here  the  situation  is 
peculiar.  It  is  settled  by  a  long  line  of  English  cases,^^  which 
have  been  followed  apparently  without  exception  or  dissent,  at 
least  in  the  earlier  cases  in  the  United  States,***^  that  A  takes  an 
absolute  interest.  Upon  what  reasoning,  however,  does  this  ap- 
parently settled  result  rest?  It  is  clear  from  Smith  v.  Butcher 
and  the  cases  following  it,  that  it  cannot  rest  upon  the  Rule  in 
Shelley's  Case,  for  if  that  Rule  does  not  apply  where  the  limita- 
tions are  to  A  for  life,  and  then  to  A's  heirs,  it  certainly  cannot 
apply  where  the  limitations  are  to  A  for  life  and  then  to  the 
heirs  of  A's  body.  The  sound  explanation  of  the  rule  that  a 
bequest  to  A  for  life  and  then  to  the  heirs  of  A's  body,  gives 
A  an  absolute  interest,  is  this :  The  English  cases  so  settling  the 
rule  were  decided  in  the  eighteenth  century,  if  not  before,  and 
at  a  time  when  there  was  certainly  a  very  strong  impression 
abroad  that  the  Rule  in  Shelley 's  Case  was  a  rule  of  construction 
which  somehow  determined  and  fixed  the  meaning  of  the  words 
which  a  testator  had  used.'^'^    If  that  were  true,  then  what  would 

66  240  111.  492.  Fla.  369;  Mason  v.  Pate's  Exr.,  34 

67  J ccor(?:  Wallace  v.  Foxwell,  250  Ala.  379;  Machen  v.  Machen,  15 
111.  616.  Ala.  373;   Denson  v.  Thompson,  19 

68  Theobald  on  Wills,  6th  ed.  462;  Ark.  66;  In  re  Tillinghast,  25  K.  I. 
Butterfield  v.  Butterfield,  1  Ves.  338;  King's  Heirs  v.  King's  Admr., 
Sr.  133 ;  Richards  v.  Bergavenny,  2  12  Ohio  390 ;  Williamson  v.  Daniel, 
Vern.  3^4;  Elton  v.  Eason,  19  Ves.  12  Wheat.  567;  Stocton  v.  Martin, 
73.  2    Bay.    471     (S.    C.) ;     Hughes    v. 

69Dott  V.  Cunnington,  1  Bay   (S.  Niklees,  70  Md.  484. 
C.)    453;    Poli    v.    Paris,    9    Yerg.  'o  gee    Lord    Mansfield's    decision 

(TenD.)  209;  Pressgrove  v.  Ck)mf ort,  in   Perrin   v.    Blake,   King's   Bench 

58  Miss.  644;    Hampton  v.  Bather,  Div.   (1769),  1  W.  Bl.  672,  and  the 

.30   Miss.    193;    Powell   v.   Brandon,  discussion    which    arose    with    refer- 

24  Miss.  343;  Smith  v.  McCormick,  ence  to  it,   Fearne,  C.   E.,   155-173, 

46    Ind.    135;    Watts    v.    Clardj,    2  Fearne 's   letter   to   Lord   Mansfield, 

498 


ClI.    W'JIJ  KILE   IX    SHELLKY's   CASE  [§437 

be  more  natural  llian  to  liold  that  what  created  an  estate  tail  as 
to  realty  was  sufficient  to  express  the  same  intent  as  to  person- 
alty? Perhaps,  in  addition  to  this,  there  was  a  certain  rude 
inference  that  a  limitation  to  A  for  life  and  then  to  the  heirs 
of  his  body  was  meant  to  give  A  an  estate  tail.  Once  an  intent 
to  give  A  an  estate  tail  in  personalty  was  found,  A  took  the 
absolute  interest,  since  there  was  no  such  thing  as  an  estate  tail 
with  respect  to  personalty.  As  soon,  however,  as  the  controversy 
over  Lord  Mansfield's  decision  in  Perrin  v.  Blake  passed  into 
history,  and  it  became  fully  recognized  that  the  Rule  in  Shelley's 
Case  was  a  feudal  common  law  rule  which  defeated  the  intent 
as  expressed,''^  it  became  clear  that  the  Rule  in  Shelley's  Case 
could  have  no  effect  to  control  the  disposition  of  personal  prop- 
erty', but  that  such  disposition  depended  solely  upon  the  real 
expressed  intent  of  the  testator.  Hence,  the  very  positive  and 
clear  results  reached  by  Jessel,  when  he  met  a  bequest  to  A 
for  life  and  then  to  A's  heirs.  In  the  light  of  Smith  v.  Butcher, 
and  the  more  recent  cases  following  it,  it  is  clear  that  the  older 
cases  which  give  A  the  absolute  interest  where  the  limitations 
are  to  A  for  life  and  then  to  the  heirs  of  his  body,  are  inde- 
fensible upon  principle.  They  are  to  be  sustained  only  upon 
authority.  In  any  event,  the  language  of  Lord  Chancellor  Hard- 
wicke,  in  Garth  v.  Baldwin/'-  that  A  takes  an  absolute  interest 
no  matter  whether  the  testator  intended  it  or  not,  cannot  be 
supported.  The  holding  of  the  Mississippi  court"^  that  although 
the  Rule  in  Shelley's  Case  was  abolished  as  to  real  estate,  yet  it 
still  applied  to  personalty  so  as  to  give  A  the  absolute  intere.st 
where  the  limitations  were  to  A  for  life  and  then  to  the  heirs  of 
A's  body,  seems  very  curious.  As  a  matter  of  fact,  in  a  juris- 
diction like  Illinois,  when  the  question  arises  for  the  first  time 
to-day  as  to  what  estates  are  created  in  personalty  by  language 
bequeathing  to  A  for  life  and  then  to  the  heirs  of  A 's  body,  there 
is  the  same  argument  for  disregarding  the  old  authorities  and 
construing  the  language  rationally  according  to  its  primary' 
meaning  by  present-day  usage,  that  there  is  for  taking  the  same 

appended  to  the  1st  volume  of  the  "i  Post,  §  441. 

4th  ed.  of  the  Treatise  on  Contin-  72  2  Ves.  Sr.,  646,  661. 

gent  Remainders,  3  Campbell's  Lives  "s  Pressgrove  v.  Comfort,  58  Miss. 

of  the  Chief  Justices,  3rd  ed.  305-  644. 

312. 

499 


§  438]  FUTURE   INTERESTS  [Cll.    XVII 

course  with  respect  to  the  construction  of  gifts  over  if  the  first 
taker  "dies  without  issue."  '*  Indeed,  two  recent  cases,  one  from 
North  Carolina"^''  and  the  other  from  Pennsylvania,"^  go  a  long 
way  toward  disregarding  the  old  authorities  and  establishing 
the  rule  that  the  testator's  expressed  intent  must  be  carried 
out.  In  both  the  bequest  was  to  A  for  life,  and  then  to  the 
heirs  of  A's  body,  and  in  both  it  was  held  that  A  took  only  a 
life  estate,  and  that  there  was  a  separate  future  interest  in  the 
heirs  of  A's  body.  The  excuse  for  this  result  was  that  the  rule 
giving  A  an  absolute  interest  was  a  rule  of  construction  which 
yields  readily  to  a  contrary  intention,  and  that  in  the  will  in 
question  the  whole  context  showed  that  a  life  estate  and  a 
separate  future  interest  was  meant.  If  this  be  sound,  then  it 
cannot  be  said  that  the  Rule  in  Shelley's  Case  ever  applied,  even 
by  analogy,  for  the  Rule  in  Shelley's  Case  defeats  intention. 

§  438.  There  aje  recent  decisions  which  seem  to  hold  that 
upon  a  bequest  to  A  for  life  and  then  to  A's  heirs,  the  Rule 
applies,  and  A  has  an  absolute  interest:  None,  however,  will 
be  found  impressive  as  authority.  The  most  cock-sure  case  is 
Knox  V.  Barker."''  Upon  examination,  however,  this  case  will 
be  found  to  have  been  decided  upon  the  Pennsylvania  law,  which 
was  held  to  be  controlling  with  respect  to  the  construction  of  the 
will  there  involved.  The  decision  amounts  only  to  the  North 
Dakota  court's  interpretation  of  what  was  the  law  of  Pennsyl- 
vania. Tlie  court  cites  two  Pennsylvania  cases  in  support  of  the 
conclusion  that  the  Rule  in  Shelley's  Case  applied. ^^  Neither  of 
these  cases  will  be  found  to. support  the  conclusion  of  the  North 
Dakota  court.  In  both  there  was  language  sufficient  to  show  an 
express  intention  to  create  an  estate  tail  in  A  as  to  the  person- 
alty, and  on  this  ground,  and  this  ground  alone,  was  the  con- 
clusion reached  that  A  took  an  absolute  interest  in  the  person- 
alty. Such  a  result  is  y&ry  different  from  that  reached  where 
the  language  purports  to  create  a  life  estate  in  A  with  a  future 
interest   to  A's  heirs.     The   Pennsylvania   case   of   Appeal   of 

74Sti8ser  v.  Stisser,  235  111.  207;  ^7  8  No.  Dak.  272. 

3  111.  Law  Rev.  369.  ts  Smith  's   Appeal,  23  Pa.   St.   9 ; 

75  Crawford  v.  Wearn,  115  N.  C.       Mengal's  Appeal,  61  Pa.  St.  248. 
540. 

76  Clemens   v.    Hecksher,    185    Pa. 
476. 

500 


Cii.  X\'I1J  RULE  IN  Shelley's  case  [§438 

Cockins  and  Harper''^*  might  appear  to  hold  that  the  Rule  in 
Shelley's  Case  applies  to  a  gift  of  residuary  real  and  personal 
estate  to  A  for  life  and  then  to  A's  heirs,  not  only  as  to  the 
realty,  but  also  to  the  personalty.  The  court,  however,  does 
not  say  that  the  Rule  in  Shelley's  Case  applies,  but  seems  to  pro- 
ceed upon  a  construction  of  the  word  "heirs"  as  if  it  meant  ex- 
ecutors and  administrators.  It  is  very  apparent  that  the  court's 
reasoning  is  tainted  with  the  idea  that  the  Rule  in  Shelley's  Case 
is  a  rule  of  construction.  In  re  Keys' s  Estate  *"  is  somewhat 
inexplicable.  In  that  case  personalty  was  bequeathed  to  the 
widow  for  life  and  then  to  her  heirs.  The  widow  renounced. 
It  seems  to  have  been  held  that  the  residuary  legatee  took  until 
the  widow's  death,  and  that  at  that  time  the  widow's  heirs 
would  take.  This  would  seem  to  be  a  holding  that  the  Rule  in 
Shelley's  Case  does  not  apply,  because  if  it  did,  so  that  the  widow 
took  an  absolute  interest,  upon  the  renunciation  of  the  widow, 
the  residuary-  legatee  would  take  the  whole  personalty  be- 
queathed, and  the  widow's  heirs  would  get  nothing.  Neverthe- 
less, some  language  of  the  opinion  appears  to  admit  that  the  Rule 
in  Shelley's  Case  does  apply,  or  at  least,  to  leave  that  matter 
open.  In  a  Maryland  case,^^  decided  by  a  single  judge  at  nisi 
prius,  in  the  County  Court  of  Baltimore  County,  it  was  held 
squarely  that  where  there  was  a  bequest  of  a  leasehold  to  A  for 
life  and  then  to  A's  heirs,  the  Rule  in  Shelley's  Case  would  ap- 
ply, and  A  would  have  the  absolute  interest.^^  The  reasoning  of 
the  court  is  that  since  it  was  settled  that  a  bequest  to  A  for  life 
and  then  to  the  heirs  of  A's  body,  gave  A  an  absolute  interest, 
and  this  result  must  rest  upon  the  application  of  the  Rule  in 
Shelley's  Case,  the  same  Rule  must  apply  to  a  bequest  to  A  for 
life  and  then  to  A's  heirs.  The  fallacy  of  this  is  now  plain. 
The  modern  English  cases  show  plainly  that  the  judge  was  eon- 
fused  in  his  premise.  While  it  is  true  that  a  bequest  to  A  for 
life  and  then  to  the  heirs  of  A's  body  gave  A  an  absolute  in- 
terest, this  was  not  properly  the  result  of  any  application  of 
the  Rule  in  Shelley's  Case.  Furthermore,  from  the  modern  point 
of  view,  it  is  of  doubtful  propriety  upon  principle,  and  perhaps 

"111   Pa.  St.  26.  82  See  also  Maulding  v.  Scott,  13 

80  4  Pa.   Dist.   134.  Ark.  88. 

81  Home  V.   Lyeth,   4    Har.   &   J. 
(Md.)  431. 

501 


§  438]  PUTUEE  INTERESTS  [Ch.    XVII 

contrary  to  the  most  recent  cases.    It  certainly  does  not  furnish 
a  premise  to  be  reasoned  from  in  the  case  where  the  bequest  is 
to  A  for  life  and  then  to  A's  heirs.    Rather,  are  the  results  of 
the  modern  cases,  like  Smith  v.  Butcher,  where  the  gift  is  to  A 
for  life  and  then  to  A's  heirs,  to  be  regarded  as  correct  upon 
principle.     These  are  the  ones  to  be  used  as  the  basis  of  criti- 
cism of  the  result  of  the  eighteenth  century  cases,  holding  that 
A  takes  the  absolute  interest  where  the  bequest  is  to  A  for  life 
and  then  to  the  heirs  of  A's  body.     In  the  Rhode  Island  case 
of  Taylor  v.  Lindsay,^^  the  settlor  settled  personalty  upon  him- 
self for  life  and  then  limited  a  future  interest  to  his  own  heirs. 
Without  the  application  of  the  Rule  in  Shelley's  Case  it  was  per- 
fectly proper  to  hold  that  there  was  a  resulting  trust  or  a  result- 
ing estate  to  the  settlor  absolutely.    Hence,  he  took  not  only  a 
life  interest  but  the  absolute  interest  in  reversion  as  well.    Such 
is  the  explanation  of  Taylor  v.  Lindsay,  made  by  the  Rhode 
Island  court  in  Buchlin  v.  Crcightou  «■*     In  this  latter  ease  the 
court  held  that  because  the  testator  made  his  intent  clear  that 
A  was  to  have  only  a  life  estate  and  that  then  there  was  to  be 
a  separate  future  interest  to  A's  heirs,  the  intent  must  be  carried 
out  as  expressed.     In  Evans  v.  Weatherhcad  ^^  the  actual  limi- 
tations do  not  appear,  but  the  Rhode  Island  court  again  an- 
nounces in  terms  that  if  there  is  a  clear  intent  expressed  that  A 
is  to  have  a  life  estate,  and  that  then  there  is  to  be  a  separate 
future  interest  to  A's  heirs,  that  intent  will  be  carried  out.    The 
highest  court  of  Pennsylvania  has  recently  gone  as  far,  if  not 
farther,  in  emphasizing  the  necessity  of  carrying  out  the  testa- 
tor's expressed  intent.    In  Dull's  Estate,s«  there  was  a  trust  for 
the  testator's  son  Joseph  for  life  with  a  spendthrift  trust  clause 
and  at  his  death,  to  his  "heirs."     The  son,  it  was  held,  took 
only  a  life  estate,  because  the  spendthrift  clause  clearly  showed 
that  such  was  the  testator's  actual  intent.    In  a  recent  case  in 
this  state  ^^  also,  we  find  our  Supreme  Court  announcing  that 
the  Rule  in  Shelley's  Case,  as  it  applies  to  personal  property, 
yields  to  the  expressed  intent  of  the  testator.     All  jurisdictions 
in  the  United  States,  it  is  believed,  would  admit  with  these  cases, 
that  if  the  expressed  intent  were  clear  that  A  was  to  have  only 

83  14  R.  I.  518.  "«  137  Pa.  St.  112. 

84  18  R.  I.  325.  8^  Bennett  v.  Bennett,  217  111.  434. 

85  24  R.  I.  502. 

502 


Cii.  XVllJ  HULK  IN  Shelley's  case  [§440 

a  life  estate,  and  that  his  heirs  were  then  to  have  a  separate 
contingent  interest,  such  expressed  intent  must  be  carried  out. 
This  of  itself  is  a  real  admission  that  the  Rule  in  Shelley's  Case, 
as  a  rule  of  law  defeating  intent,  does  not  apply,  but  that  the 
Rule  in  Shelley's  Case  applies  only  as  a  rule  fixing  intent. 
The  moment,  then,  it  is  clear  that  the  Rule  in  Shelley's  Case  is 
entirely  a  Rule  and  not  at  all  a  rule  of  construction,  it  is  in- 
applicable on  the  very  hypothesis  upon  which  some  American 
courts  appear  to  apply  it.  In  a  state  like  Illinois  where  the  court 
is  so  firml}'  rooted  to  the  correct  view  that  the  Rule  in  Shelley's 
Case  defeats  intent,*"^  there  can  be  no  justification  for  applying 
that  rule  to  personal  property,  even  as  a  prima  facie  rule  of 
construction. 

§  439.  Suppose  the  limitations  of  personal  property  are  in- 
cluded in  a  residuary  gift  of  real  and  personal  property  to  A 
for  life  and  then  to  A's  heirs:  It  is  clear  that  as  to  the  realty 
A  takes  a  fee  by  the  Rule  in  Shelley's  Case  and  b}'  the  doctrine 
of  merger.  Is  there  any  difficulty  in  A's  taking  a  life  estate  in 
the  residuary  personalty,  with  a  separate,  distinct  and  valid 
future  interest  to  his  heirs  in  the  same  residuary  personalty, 
according  to  the  testator's  expressed  intent?  It  would  seem 
not.  The  case  is  not  one  whore  the  question  as  to  the  disposition 
of  the  realty  and  personalty  alike  must  be  determined  solely 
by  following  the  expressed  intent  of  the  testator.  The  dispo- 
sition of  the  realty  is  determined  not  only  by  what  the  testator 
expressly  intends,  but  also  by  the  application  of  the  Rule  in 
Shelley's  Case,  which  defeats  that  intention.  On  the  other  hand, 
the  disposition  of  the  personalty  depends  solely  upon  the  ex- 
pressed intent.  This  simple  aspect  of  the  matter  upon  principle 
is  amply  sufficient  to  account  for  the  fact  that  the  results  as  to 
the  real  estate  are  different  from  the  results  reached  as  to  per- 
sonalty, and  that  both  results,  while  quite  inconsistent  with  each 
other,  are  each  entirely  correct.  Such  is  the  position  of  our 
Supreme  Court  in  Lord  v.  Comsfock.^^ 

TITLE   II. 
METHOD    OF    OPEIL\TION    OF    THE    RULE. 

^  440.  The  Rule  operates  in  no  manner  whatever  upon  the 
estate  of  freehold  in  A,  but  only  upon  the  remainder:     It 

S8  Posi,  §  441.  8«  240  III.  492. 

503 


§  440]  FUTURE   INTERESTS  [Ch.    XVII 

denies  to  the  remainder  the  effect  of  a  gift  to  the  heirs.  It 
attributes  to  the  remainder  the  effect  of  a  gift  to  the  ancestor 
himself.^^  Thus,  in  the  usual  case  for  the  application  of  the  Rule 
in  Shelley's  Case,  i.  e.,  where  the  gift  is  to  A  for  life,  remainder 
to  A's  heirs,  the  rule  operates  in  no  degree  upon  A's  life  estate 
but  simply  changes  the  remainder  to  A 's  heirs  into  a  remainder 
to  A  himself,  so  that,  when  the  operation  of  the  Rule  is  complete, 
A  lias  a  life  estate  with  a  remainder  in  fee  to  himself. 

This  correct  operation  of  the  Rule  in  Shelley's  Case  has,  it 
is  believed,  never  been  distinctly  noted  by  our  Supreme  Court. 
That  the  Rule  operates  only  upon  the  remainder  seems  to  have 
been  recognized  by  the  court  because  it  has  quoted  from  time 
to  time  definitions  of  the  Rule  from  the  English  writers  which 
so  describe  its  operation,*'^  though  not  so  clearly  as  does  Hayes 
in  his  exposition.  The  general  impression,  nevertheless,  to  be 
derived  from  the  handling  of  the  usual  ease  of  a  gift  to  A  for 
life,  with  a  remainder  to  A's  heirs,  is,  that  the  Rule  operates 
to  give  A  a  fee  simple  directly.^^  Of  course  this  is  the  ultimate 
result  in  the  case  put,^^  "because  the  moment,  by  the  Rule,  you 
have  a  life  estate  to  A,  with  a  remainder  in  fee  to  A,  the  two 
estates  merge  and  A  is  in  of  a  fee  simple. 

The  real  operation  of  the  Rule  is  at  once  perceived,  if  the 
estate  be  limited  to  A  for  life,  with  a  remainder  to  B  for  life, 
remainder  to  A's  heirs.  By  the  Rule  A  has  a  life  estate,  B  a 
remainder  for  life,  and  A  a  remainder  in  fee,  and,  because  of 
the  intervening  life  estate  there  can  be  no  merger.^^  So  where 
the  limitations  were  to  A  for  life  remainder  to  the  children  of 

!>o  1  Hayes  on  Conveyancing,  543-  571.      If    the    instructions,    said    to 

544.  have  been  sent  out  by  a  local  trust 

^'i- Ante,  §412,  notes  3,  4.  company    to    its    clients    as    to    the 

92  Muhlke  V.  Tiedemann,  177  111.  proper  manner  of  avoiding  the  Kule 
606,  615.  in   Shelley's   Case,   be   followed,   we 

93  Baker  v.  Scott,  62  111.  86 ;  Bris-  may  expect  more  of  such  cases.  The 
lain  V.  Wilson,  63  111.  173;  Eiggin  irtamphlet  circulated  by  the  trust 
V.  Love,  72  111.  553,  556,  semhle;  company,  after  stating  the  usual 
Ryan  v.  Allen,  120  111.  648;  Car-  effect  of  the  Rule,  went  on  to  say 
penter  v.  Van  Olinder,  127  111.  42;  that,  if  one  wished  to  leave  prop- 
Hageman  v.  Hageman,  129  111.  164;  erty  to  A  for  life  and  afterwards 
Fowler  v.  Black,  136  111.  363;  Van-  to  his  heirs,  to  make  sure  of  ac- 
gieson  v.  Henderson,  150  111.  119;  complishing  this  object  "the  will 
Deemer  v.' KiBsSiliger,  206  "111.  57.  should  interpose  a  brief  estate  of  a 

9*  Carpenter  v.  Hubbard,  263  III.       day  or  a  week  between  the  life  estate 

504 


Cii.  X\'II]  KL'LK  IX  Shelley's  case  [§-i-41 

A  surviving,  in  fee,  but  if  no  sueli  children,  to  A's  heirs,  A  had 
a  life  estate  with  a  contingent  remainder  in  fee  to  the  children, 
and  by  the  Ride  in  Shelley's  Case  a  future  contingent  remainder 
in  fee  in  himself/-*^  If  the  life  estate  be  subject  to  a  spendthrift 
trust  clause,  it  should  prevent  a  mergf-r  of  the  life  estate  and 
the  remainder  in  the  life  tenant  created  by  the  Rule  in  Shelley's 
Case.^^  So  where  A  has  a  life  estate  in  one-half,  with  a  re- 
mainder to  her  heirs  in  the  whole,  the  Rule  applies,  but  its 
operation  is  confined  to  the  remainder,  so  that  the  life  estate  and 
remainder  in  fee  only  merge  as  to  one-half  the  property  and  in 
the  other  half  A  has  a  remainder  in  fee  subject  to  the  life  estate 
of  another.-'" 

TITLE   HI. 
CHARACTER  OF  THE  RULE. 

§  441.  The  Rule  is  not  one  of  construction,  but  an  absolute 
rule  of  law  which  operates  to  defeat  the  intent  of  the  testator 
or  settlor:  '-^^  It  is  obviously  impossible  that  a  rule,  which 
not  only  refuses  to  give  eflt'ect  to  the  remainder  to  the  heirs  but 
actually  turns  it  into  a  remainder  to  the  ancestor  himself,  should 
be  a  rule  of  construct  ion.''^  P  err  in  v.  Blake  ^  and  the  later  Eng- 
lish authorities  -  have  clearly  declared  it  to  be  not  a  rule  of 
construction  by  holding  that,  even  where  the  testator  or  grantor 
declared  he  did  not  intend  the  rule  to  govern,  nevertheless  it 
did  govern  just  the  same. 

All  this  seems  to  have  been  recognized  in  Baker  v.  Scott.^ 
the  first  and  leading  case  in  this  state  on  the  Rule  in  Shelley's 
Case.     In  Butler  v.  Huestis,'^  however,  there  is  some  language 

and  the  estate  of  the  heirs."     (Ar-  il   W.  Bh   672    (5  Gray's   Cases 

tide  in  28  Chicago  Legal  News,  p.  on  Prop.  2nd  ed.  89). 

258,  by  Lessing  Rosenthal.)  2  Roe  d.  Thong  v.  Bedford,  4  M. 

95  Hanes    v.   Central   111.   Utilities  &  S.  362;  5  Gray's  Cases  on  Prop., 

Co.,  262  111.  86.  1st    ed.    99.      See    also    opinion    of 

9«  Wallace  v.  Foxwell,  250  111.  616.  Cockburn,     C.     J.,     in     Jordan     v. 

See  also  Wehrhane  v.  Safe  Dep.  Co.,  Adams,  9  C.  B.  N.  S.  483 ;  5  Gray 's 

89  Md.  179.  Cases  on  Prop.,  2nd  ed.  96. 

9"  Bails  V.  Davis,  241  111.  536.  3  62  111.  86. 

98  1  Hayes  on  Conveyancing,  5th  4  68  111.  594. 
ed.  545-547. 

99 1   Hayes   on   Conveyancing,   5th 
ed.  543. 

505 


§  441]  FUTURE   INTERESTS  [Ch.    XVII 

of  Mr.  Justice  Scott,  in  giving  the  opinion  of  the  court,  which 
obscured  the  fact  that  the  Rule  in  Shelley's  Case  is  not  a  rule 
of  construction,^  and  in  Brlslcnj  v.  Engel^  the  majority  of  the 
court,  speaking  by  the  same  learned  judge,  went  very  far  to- 
ward cutting  down  the  application  of  the  Rule  as  an  absolute 
rule  of  law  defeating  the  intent  of  the  testator  or  settlor.  By 
the  6th  clause  of  the  will  involved  in  that  case,  C.  B.,  the  tes- 
tator 's  grandchild,  got  a  life  estate.  The  13th  clause  provided : 
"It  is  my  wall  that  no  title  in  fee  to  any  of  said  land  shall  vest 
in  my  said  grandchildren,  and  I  declare  it  my  will  that  they 
shall  only  have  a  life  estate  therein,  and  that  the  fee  simple 
shall  vest  in  their  legal  heirs."  The  court  doubted  if  the  13th 
clause  referred  at  all  to  the  land  specifically  devised  by  the  6th 
clause,  but  even  if  it  did,  they  said,  the  Rule  in  Shelley's  Case 
did  not  apply  because  it  was  clearly  the  intent  of  the  testator 
that  his  grandchildren  should  have  only  a  life  estate,  and  the 
rule  was  only  a  technical  rule  of  construction  which  alw^ays  gave 
way  to  the  clear  intention  of  the  testator  or  donor,  expressed 
in  the  instrument  of  conveyance. 

A  reaction  against  this  and  a  return  to  the  correct  rule  was 
shortly  after  noticeable.  In  Ryan  v.  Allen '  Mr.  Justice  Scott 
dissented  and  the  majority  of  the  court,  speaking  by  Mr. 
Justice  Shope,  laid  stress  upon  the  fact  that  the  Rule  in  Shel- 
ley's Case  was  an  absolute  rule  of  law  defeating  the  intent  of 
the  transferor.  In  Carpenter  v.  Van  Olinder,^  Mr.  Justice  Schol- 
field  stated,  still  more  emphatically,  that  the  rule  was  an  abso- 
lute one,  and  that  the  emphasized  expression  of  an  intent  on 
the  part  of  the  testator  to  give  the  ancestor  only  a  life  estate, 
would  not  defeat  its  operation.  He  expressly  repudiated,  on 
behalf  of  the  whole  court,  the  language  of  Mr.  Justice  Scott 
in  Belslay  v.  Engel.  Finally,  Foivler  v.  Black  ^  may  almost  be 
regarded  as  setting  the  point  at  rest.  The  deed  in  that  case  ran 
to  A  for  life  "and  upon  his  death  then  unto  his  heirs  and  their 
assigns  forever,  it  being  the  true  intent  and  meaning  of  this 
indenture     *     *     *     to  convey     *     *     *     to  said  party  of  the 

5  See  dietum  of  Mr.  Justice  Mul-  «  i27  111.  42   (quoting  at  page  48 

key  in  Welsch  v.  Belleville  Savings  from  Hayes'  Principles,  7  Law  Lib. 

Rank,  94  111.  191,  199.  52). 

«  107  111.  182.  9  136  111.  363. 

n20  III.  648. 

506 


Cii.  XVII]  RULE  IN  Shelley's  case  |§441 

second  part  [A]  to  have  and  to  hold  only  during  his  natural 
life,  and  upon  the  death  of  said  party  of  the  seeotid  part,  said 
l)remises  to  be  held  in  fee  simple  by  his  heirs  and  assigns  for- 
ever." The  court  declared  the  Rule  in  Shelley's  Case  to  be  "a 
rule  of  property  which  overrides  even  the  express  intent  of  the 
testator  or  grantor  that  it  shall  not  operate,"  and  consequently 
held  the  Rule  applicable  to  the  limitations  quoted."* 

10  All  the  dicta  of  our  Supreme  v.  Barnes,  156  111.  61 ;  Silva  v.  Hop- 
Court  since  Carpenter  v.  Van  Olin-  kinson,  158  111.  386;  Wolfer  v.  Hem- 
der,  127  111.  42,  have  repeated  that  .  mer,  144  111.  554,  559;  Strain  v. 
the  Rule  is  an  absolute  rule  of  law  Sweeny,  163  111.  603,  610;  Deemer 
overriding  the  express  intention  of  v.  Kessingor,  206  111.  57;  Ward  v. 
the  testator  or  grantor:  Hageman  Butler,  239  111.  462,  467,  468;  Win 
V.    Hageman,    129    111.    164;    Ewing  ter  v.  Dibble,  251  111.  200,  222. 


507 


CHAPTER  XVIII. 
SPRINGING  AND  SHIFTING  FUTURE  INTERESTS. 

§  442.  Introduction:  A  springing  future  interest  is  one 
limited  upon  an  event  which  can  take  effect  only  after  the 
termination  of  a  preceding  interest  expressly  created,  or  at  a 
future  time  where  no  preceding  interest  has  been  limited.^  Thus, 
if  the  limitations  are  to  A  for  life  and  one  j'ear  after  A's  death 
to  B,2  or  to  B  ten  years  after  date,  B's  interest  is  in  both  cases 
a  springing  future  interest.  So  where  a  future  interest  in  land 
is  limited  upon  a  contingent  event  after  a  term  for  years  it 
must  be  classified  as  a  springing  interest,  because  from  the  feudal 
point  of  view  the  term  for  years  was  not  an  interest  in  land.^ 
Therefore,  the  freehold  limited  upon  a  contingency  was  to  take 
effect  at  a  future  time  without  any  preceding  interest  in  the 
land  being  created.^ 

A  shifting  future  interest  is  one  limited  upon  such  an  event 
that  it  necessarily  cuts  short  or  defeats  prematurely  a  preceding 
interest  expressly  created.^  The  stock  example  occurs  where  a 
fee  or  absolute  interest  is  limited  to  A  with  a  gift  over  if  A 
dies  without  issue  him  surviving  to  B.  B's  interest  is  a  shifting 
future  interest.  A  life  estate  may,  however,  be  subject  to  a 
shifting  gift  over,  as  where  a  life  estate  is  limited  to  A  with  a 
condition  subsequent  upon  the  happening  of  which  it  is  termi- 
nated and  a  gift  over  made  to  B.''' 

Springing  and  shifting  future  interests  exist  in  sharp  con- 
trast to  reversions  and  vested  remainders,  which  always  follow 
a  particular  estate  of  freehold  and  stand  ready  throughout  the 
continuance  of  the  particular  estate  to  take  effect  in  possession 
whenever  and  however  the  preceding  estate  determines."^     They 

1  Ante,  §  26.  *  Kingman    v.    Harmon,    131    111. 

2  Jacobs  V.  Ditz,  260  111.  98    (to       171. 

A   for  life  and  then  to  B  provided  5  Ante,  §  26. 

he  pay  a  certain  sum  to  C)  ; '  Kolb  e  Blackman  v.  Fysh,   [1892]   3  Ch. 

V.  Landes,  277  111.  440,  446.  209. 

^Ante,  §33,  80.  t  Ante,  §§  25,  29,  308,  327,  328. 

508 


ClI.    XVIII]       SPRINGING    AND   SHIFTING    INTERESTS  [§'143 

are  diflVrentiatcHl  from  t'Oiitingent  rcmaindors  which  are  future 
interests  limited  after  a  partieuhir  estate  of  freeliold  on  an  event 
which  may  happen  before  or  after,  or  at  the  time  of  or  after, 
the  termination  of  the  preceding  estate,  but  which  by  a  rule  of 
law  can  only  be  valid  if  the  event  happens  before  or  at  the  time 
of  the  termination  of  the  preceding  estate.^ 

Springing  and  shifting  interests  in  land  when  created  by  way 
of  use  are  called  springing  and  shifting  or  future  uses.  When 
created  by  will  they  are  called  executory  devises.  The  term 
"conditional  limitations'*  is  used  properly  to  designate  all  shift- 
ing interests  whether  created  inter  vivos  or  by  will. 

TITLE    I. 
BY  DEED— FUTURE  USES. 

Topic  1. 

Shifting  Interests  by  Deed  are  Valid  in  Illinois. 

§  443.  Introduction:  ^  If  an  intelligent  layman  desiring  to 
make  a  settlement  inter  vivos  were  told  that  his  deed  limiting 
a  legal  estate  in  fee  to  his  daughter,  wuth  a  gift  over  to  B  if 
the  daughter  died  without  issue  her  surviving,  would  be  abso- 
lutely void  to  pass  anything  to  B,  he  would,  doubtless,  be  sur- 
prised. If  it  were  explained  to  him  that  it  was  impossible  by 
deed  to  create  any  shifting  future  interests  in  lands  in  this  state 
perhaps  he  would  be  indignant.  He  might  argue  that  the  land 
was  his  and,  provided  he  complied  with  the  legal  formalities  for 
transfer,  he  ought  to  be  able  to  do  with  it  what  he  pleased.  No 
doubt  he  would  admit  the  good  sense  in  the  rule  which  made  in- 
valid shifting  interests,  whether  created  by  deed  or  will,  violat- 
ing the  Rule  against  Perpetuities.i*^  He  might  concede  the  pro- 
priety of  the  rule  that  all  gifts  over  in  deeds  or  wills  by  way  of 
forfeiture  on  an  attempted  alienation  by  deed  or  will  should  be, 
as  they  clearly  are,  invalid.^  ^    He  would  object,  but  he  would  be 

» Ante,    §§27,   29,  96,  309.  an  Argument,"  used  by  him  in  bis 

9  This    introduction     (§§443-461)  Course    on    Argumentation    at    the 

is  constructed   upon  lines  suggested  Northwestern  University  Law  School 

by  H.  L.  Prescott,  Esq.,  in  a  leaf-  in  1904-1905. 

let    entitled    "Skeleton    of    Funda-  lo  Pos<,  §§  652  <•(  sfg. 

mental    Form    of    Introduction    for  n  Pos/,  §§  717-719. 

509 


§  444]  FUTURE   INTERESTS  [Ch.    XVIII 

obliged  to  submit,  to  the  rule  that  a  gift  over  on  the  intestacy 
of  the  tirst  taker,  whether  created  by  deed  or  will,  is  void.^^  g^t 
what  reason  could  possibly  be  given  him  for  the  rule  that  all 
shifting  interests  by  deed  are  void  in  this  state?  And  how 
would  you  explain  to  him  that  he  could  do  this  thing  by  will  ^^ 
but  not  by  deed  ? 

§  444.  The  Illinois  authorities  are  divided — Cases  in  support 
of  the  validity  of  shifting-  interests  by  deed:  It  seems  settled 
here  that  a  power,  created  by  deed,  to  appoint  a  new  trustee  is 
valid. ^^  The  donee  of  the  power  may  be  the  cestui  que  tnist,^^ 
or  an  utter  stranger  to  the  transaction,  as  the  court  of  chancery 
of  a  judicial  circuit. i*'  Furthermore,  upon  the  appointment 
being  made  under  the  power  the  new  trustee  becomes  ipso  facto 
vested  with  the  legal  title  to  the  trust  premises,  and  no  con- 
veyance need  be  made  to  him  by  the  former  trustee, ^^  or  the 
former  trustee's  heirs,  if  he  bo  dead.  Nor  are  the  cases  to  this 
eii'ect  to  be  put  upon  any  narrow  ground  that  the  poAver  occurs 
in  a  trust  deed  by  way  of  mortgage,  for  in  Morrison  v.  Kelly '^^ 
the  trust  was  an  active  one  for  the  benefit  of  the  settlor's  wife.^^ 
The  same  object  is,  in  the  present  day  Cook  County  Trust  Deed 
by  way  of  mortgage,  more  often  accomplished  directly  without 

12  Post,  §§  722-725.  for  want  of  a  written  conveyance  to 

13  Post,  §  467.  them,  untenable.     By  the   terms   of 

14  Morrison  v.  Kelly,  22  111.  610 ;  the  deed  the  same  title  and  power 
Lake  v.  Brown,  116  111.  83;  Craft  which  were  conferred  upon  the  origi- 
V.  I.  D,  &  W.  Ry.  Co.,  166  111.  580;  nal  trustees  vested  in  their  succes- 
West  V.  Fitz,  109  111.  425,  442,  sors,  when  lawfully  appointed." 
scmhle;  Reichert  v.  Mo.  &  111.  Coal  See  also  to  the  same  effect:  2  Lewin 
Co.,  231  111.  238.  on  Trusts,  1st  Am.  from  8th  Engl. 

15  Lake  v.  Brown,  116  111.  83;  ed.  650-651;  2  Chance  on  Powers, 
Craft  V.  1.  D.  &  W.  Ry.  Co.,  166,  400  et  seq. 

580.  18  22  111.  610. 

18  Morrison  v.  Kelly,  22  111.   610;  is  Observe  also  the  English  prac- 

See    also    Leman   v.    Sherman,    117  tice    of    inserting    such    powers    in 

111.  657,  668.  settlements  inter  vivos  where   trus- 

17  Morrison  v.  Kelly,  22  111.  610;  tecs   have   active    duties.      2    Hayes 

Craft  V.   I.   D.   &   W.   Ry.   Co.,   166  on    Conveyancing,    71-72.      For    the 

111.  580.    In  the  latter  case  the  court  law  generally  relating  to  power  to 

passed  upon  this  point  specifically:  appoint  new  trustees  see  Sugden  on 

(saying,  page  586)  "We  also  think  Powers,  8th  ed.   883-890;    2  Chance 

the    position    that    no    title    to    the  on    Powers,    393-411;    2    Lewin    on 

property    or    power    to    execute    the  Trusts,  1st  Am.  from   8th  Engl.  ed. 

trusts  vested  in  them  as  successors  645-673. 

510 


Cir.    XVII I  j       SPRINGING    AND   SHIFTING   INTERESTS  [§445 

the  exercise  of  any  power  by  this  provision:  "In  ease  of  the 
death,  absence,  inability  or  refusal  to  act,  of  said  party  of  the 
second  part,  then  [here  insert  name  of  successor  in  trust],  of 
the  said  city  of  Chicago,  shall  be,  and  he  is  hereby  appointed  and 
made  successor  in  trust  to  said  party  of  tht;  second  part  under 
this  deed,  with  like  powers  and  authority,  and  said  premises 
shall  thereupon  become  vested  in  said  successor  in  trust,  for  the 
uses  and  purposes  aforesaid."  Here  the  clause  is  self-acting,  for 
at  once  upon  the  happening  of  the  event  the  successor  in  trust 
becomes  invested  with  the  legal  title.^" 

These  results  can  be  sustained  only  upon  the  ground  that 
shifting  interests  by  deed  are  valid.  The  operation  of  the  power 
is  to  divest  the  legal  title  from  the  first  trustee  or,  if  he  be  dead, 
from  his  heirs,  and  to  give  the  same  legal  title  to  the  new  trus- 
tee,— in  short,  to  shift  a  legal  title  in  fee  from  one  person  to 
another.  Exactly  the  same  thing  occurs  where  a  successor  in 
trust  is  specifically  named — upon  the  happening  of  the  con- 
tingency the  legal  fee  shifts  from  the  first  trustee  to  the  suc- 
cessor.2i  We  have,  also,  the  direct  dictum  of  Albott  v.  Abbott  22 
that  shifting  interests  by  deed  may  be  valid  -^  in  this  state. 

§  445.  Cases  against  the  validity  of  shifting  future  interests 
by  deed:  The  court  has  frequently  referred  to  the  rule  that, 
while  thei'c  cannot  be  a  i-emainder  after  a  remainder  in  fee,  you 
may  have  two  contingent  remainders  in  fee  in  double  aspect.-"* 

20  Equitable   Trust  Co.  v.   Fisher,  22  189  111.  488,  498. 

106  111.  189,  semble;  Irish  v.  Anti-  23  In   Glover   v.   Condell,   163    111. 

oeh  College,  126  111.  474.  566,     592,     Mr.    Justice     Magruder 

21  Observe  that  the  holding  in  quotes,  apparently  with  approval, 
Boatman  v.  Boatman,  198  111.  414,  Mr.  Gray's  summary  of  his  chapter 
and  Chapin  v.  Nott,  203  111.  341,  on  Future  Interests  from  the  Rule 
now  overruled  (ante,  §359),  logi-  against  Perpetuities,  §98,  as  fol- 
cally  leads  to  the  sustaining  of  lows :  "  '  The  result  of  the  investi- 
shifting  future  interests  by  deed.  In  gation  pursued  in  the  present  chap- 
both  cases  we  have  created  by  deed  ter  is  this:  Originally  the  creation 
a  life  estate  with  a  contingent  fu-  of  future  interests  at  law  was 
ture  interest  to  unborn  persons,  and  greatly  restricted,  but  now,  either 
a  further  gift  upon  failure  of  is-  by  the  Statutes  of  Uses  and  Wills, 
sue  to  living  persons.  The  last  was  or  by  modern  legislation,  or  by  the 
held  to  be  a  vested  remainder  in  gradual  action  of  the  courts,  all 
fee.  Clearly,  however,  upon  the  restraints  on  the  creation  of  future 
birth  of  the  unborn  persons  wlio  interests,  except  those  arising  from 
are  to  take  first,  the  fee  held  to  lie  remoteness,  have  lieen  done  away '.  * ' 
vested  would  be  divested.  24  City    of    Peoria    v.    Darst,    101 

511 


§445]  FUTURE  INTERESTS  [Ch.    XVIII 

This  is  a  perfectly  sound  proposition  as  regards  remainders, 
or  common  law  future  interests  by  way  of  succession,25  and 
no  confusion  need  have  arisen  out  of  the  expression  of  it,  had 
not  the  court,  on  at  least  three  occasions,^^  where  such  a  prin- 
ciple was  announced,  strained  mightily  to  construe  future  in- 
terests created  by  deed  as  contingent  remainders  in  double  aspect 
rather  than  a  vested  remainder  in  fee,  with  a  gift  over  upon  a 
contingency  cutting  it  short,— thereby  leaving  the  impression 
that  the  latter  sort  of  limitation  by  deed  would  have  been  held 
void.  In  some  cases  the  court  has  apparently  gone  further  in  its 
dicta  and  declared  that  a  fee  on  a  fee  by  deed  was  void,  as  if  all 
shifting  interests  by  deed  were  invalid.^'^  In  two  instances 
where  the  validity  of  a  shifting  future  interest  by  deed  was 
actually  involved,  it  appears,  at  first  glance,  to  have  been  held 
invalid  upon  the  sweeping  ground  that  all  limitations  of  a  fee  on 
a  fee  by  deed  are  void.^s  The  decisions  in  both  these  cases  may, 
however,  be  sustained  upon  the  ground  that  the  gift  over  was  to 
take  effect,  in  one  case,2»  upon  the  first  taker's  intestacy,  and  in 
the  other,2"  ^po^  ^n  attempted  alienation  by  will  by  the  first 
taker. 

Passing  from  dicta  to  actual  decisions :  In  two  cases  ^^  our 
Supreme  Court  has  held  that,  upon  a  conveyance  to  the  chil- 
dren of  A  "born  and  to  be  born,"  only  those  children  in  ex- 
istence when  the  conveyance  is  executed  can  take,  thus  denying 
to  the  deed  the  power  of  creating,  in  the  then  existing  children, 
a  vested  fee  simple  which  may  be  divested  or  shifted  pro  tanto 
to  let  in  after-born  children.  In  Palmer  v.  Cook,^^  an  ordinary 
shifting  interest  was  held  invalid  on  grounds  which  would  make 
void  all  shifting  interests  whatsoever.     There,  the  conveyance 

111.  609;  McCampbell  v.  Mason,  151  163   111.    603,   605;    Stewart  v.   Ste- 

111.    500;    Seymour    v.    Bowles,    172  wart,    186    111.    60;    Kron    v.    Kron, 

111.     521.       See     also     Summers     v.  195  111.  181. 

Smith,   127   111.  645,   650;    Smith   v.  28  Kron    v.    Kron,    195    111.    181; 

Kimbell,  153  111.  368,  372.  Stewart  v.  Stewart,  186  111.  60. 

2o  Ante,  §307.  29  Kron    v.    Kron,    195    111.    181, 

26  City    of    Peoria   v.    Darst,    101  post,  §§  720  et  seq. 

111.  609,  McCampbell  v.  Mason,  151  so  Stewart    v.    Stewart,    186    111. 

111.    500;    Seymour    v.    Bowles,    172  6Q,  post,  §718. 

111.  521.  31  Morris   v.    Caudle,    178    111.    9; 

27Siegwald    v.    Siegwald,    37    111.  Miller    v.    McAlister,    197    111.    72; 

430,    438;     Glover    v.    Condell,    163  posi,  §§  475,  476. 

111.    566,    592;     Strain    v.    Sweeny,  32 159  m.  300. 

512 


Ch.    XVril]   SPRINGING    AND   SIliniNG    INTERESTS  l§-i46 

by  deed  was  in  llic  usual  form  to  M.  A.  S.  and  E.  C.  S.  in  fee, 
and  "in  case  oilhcr  of  the  grantees  dies  without  a  heir,  her 
interest  to  revert  to  the  survivor."  The  surviving  husband  of 
E.  C.  S.  filed  a  bill  for  dower  and  partition  against  M.  A.  S.,  who 
survived  E.  C.  S.  It  was  decreed  accordingly.  This  was  af- 
firmed upon  the  ground  that  the  future  limitation  to  the  sur- 
vivor was  void.  It  could  not  have  been  void  for  remoteness  for 
the  gift  over  could  not,  by  any  proper  construction,  be  upon  an 
indefinite  failure  of  issue.^'^'  Nor  does  the  court  put  the  case 
upon  any  such  ground,  but  declares  briefly  as  follows:  "It  is 
an  estublislied  principle  of  construction  of  contingent  remaind- 
ers, that  an  estate  cannot,  by  deed,  be  limited  over  to  another 
after  a  fee  already  granted.  The  term  'remainder'  necessarily 
implies  wliat  is  left,-^  and  if  the  entire  estate  is  granted  there 
can  be  no  remainder.  This  deed  effected  an  absolute  fee  simple 
conveyance  hy  tlie  iiisl  clause  of  the  deed  and  vested  the  es- 
tate. By  the  last  clause  an  attempt  is  made  to  mount  a  fee 
upon  a  fee,  which  can  only  be  done  by  executory  devise. "  ■■^•''' 

§  446.  Contentions — Of  the  cases  w^hich  seem  to  hold  shift- 
ing interests  invalid — Stated:  In  the  cases,  the  dicta  or  actual 
decision  of  which  seem  to  deny  the  validity  of  any  shifting  in- 
terest by  deed,  we  find  two  forms  of  bare  assertion  and  one 
reason.  It  is  most  often  said  that  "a  fee  cannot  be  limited  after 
a  fee  by  deed."  •'•"'  Sometimes  it  is  said  that  by  deed  a  fee  can- 
not be  limited  upon  a  fee  by  way  of  remainder,  or  that  there 
can  be  no  remainder  after  a  vested  remainder  in  fee.'*^     The 

33  Post,  §  544.  vise. ' '    See,  however,  as  to  this  pas- 

34  But  see  ' '  Eemainders  after  sage,  post,  §  448,  note  54,  and  §  449, 
Conditional  Fees,"  by  F.  W.  Mait-       note  57. 

land,  6  Law  Quart.  Rev.  22,  25.  ^«  Siegwald    v.    Siegwald,    37    111. 

35  In  Ackless  r.  Soekright,  1  430,  438;  Summers  r.  Smith,  127 
Breese  (111.)  76,  78,  the  court  quotes  111.  645,  650;  Glover  v.  Condell,  163 
from  2  Blaekstone's  Com.  174,  as  111.  566,  592;  Strain  v.  Sweeny,  163 
foUowN:  "When  a  devisor  devises  111.  603,  605;  Stewart  v.  Stewart, 
his  whole  estate,  in  fee,  but  limits  186  111.  60;  Kron  r.  Kron,  195  111. 
a    remainder    thereon    to    commence  181. 

on    a    future    contingency,    as    if    a  3-  Peoria    r.    Darst,    101    111.    609, 

man  devises  land  to  A  and  his  heirs;  616,    619;    McCampbell    v.    Mason, 

but    if    he    dies    before    the    age    of  151  111.  500,  509;   Smith  v.  Kimbell, 

twenty-one,  then  to  B  and  his  heirs,  153   111.   368,  372 ;    Palmer   v.  Cook, 

his  remainder,  though  void  in  a  deed,  159  111.   300. 
is    good    by    way    of    executory    de- 
Kales  Fut.  Int. — 33                         513 


§  447]  FUTURE   INTERESTS  [Ch.    XVIII 

only  reason  ever  sug-gested  for  this  is,  that  the  shifting  future 
interest  is  repugnant  to  the  grant  and  void.^^ 

§447.     Repugnancy:     It  is  worth  observing  that  only  two 
cases  put  forward  this  reason  of   repugnancy.^^     In   both   of 
them,  the  holding  of  the  gift  over  void,  was  sound,  because  the 
shifting  interest  was,  in  one  case,^"  to  take  effect  if  the  first  taker 
died  without  having  aliened  in  his  lifetime,^^  and,  in  the  other,^^ 
if  the  first  taker  died  intestate.^^     The  reason  of  repugnancy 
has  always  been  confined  to  just  such  cases,  and  is  particularly 
invoked  in  support  of  the  latter.-*^     In  fact,  it  was  the  original 
ground  for  holding  gifts  over  on  intestacy  void.     The  reason  of 
repugnancy,  as  thus  advanced,  meant  only  that  the  proviso,  that 
an  absolute  interest  shall  be  forfeited  if  alienation  in  a  particu- 
lar manner  {viz.:  by  descent)  is  attempted,  is  void,  and  hence 
the  gift  over  cannot  take  effect.^^     In  this  view,  the  only  re- 
pugnancy that  exists  is  between  the  first  absolute  interest  and 
the  direction  for  its  forfeiture.     Until  Ewing  v.  Barnes,^^  our 
Supreme  Court  always  carefully  recognized  the  very  special  and 
limited  application  of  the  reason  of  repugnancy  to  this  par- 
ticular sort  of  case.     In  Ewing  v.  Barnes  and  Silva  v.  Hopkin- 
son,^"'  the  court  did,  in  fact,  so  far  misconceive  the  scope  of  this 
doctrine  of  repugnancy  as  to  hold  shifting  executory  devises  in 
general  void.    But  in  Glover  v.  Condell,^^  these  two  cases  were 
overruled.     The  error  into  which  they  fell  was  fully  recognized 
and  corrected,  and,  since  then,  the  court  has  been  very  accurate 
in  limiting  the  application  of  the  idea  of  repugnancy  to  the  case 
where  a  gift  over  on  intestacy  is  held  void.     When,  therefore, 
the  court,  in  holding  gifts  over  upon  the  intestacy  of  the  first 
taker,  or  upon  his  attempted  alienation  by  will,  refers  to  re- 
pugnancy as  a  ground  of  decision,  it  would  seem  to  be  entirely 
proper  to  regard  it  as  referring  to  the  conventional  reason  whidh 
is  given  for  such  results,  and  not  as  declaring  that  repugnancy 
is  a  general  ground  upon  which  all  shifting  interests  by  deed  are 

38  Stewart  v.  Stewart.  186  111.  60;  "s  post,  §  720  ct  seq. 
Kron  V.  Kron,  195  111.  181.  "*  Post,  §  723. 

39  Stewart  v.  Stewart,  186  111.  60;  ^s  Id. 

Kron  V.  Kron,  195  111.  181.  ''«  156  111.  61,  post,  §  469. 

40  Stewart  v.  Stewart,  186  111.  60.  "7  158   111.   386,  post,   §  469. 

41  Post,  §  718.  ^«  163  111.  566,  post,  §  470. 

42  Kron  V.  Kron,  195  111.  181. 

514 


Cn.    X\'IIIJ       SI-RINGING    AND   SHIFTING   INTERESTS  [§448 

to  be  hold  invalid.  This  method  of  caleiilatins  the  s(,'ope  of  the 
reason  of  repugnancy  receives  much  encouragement  from  the 
fact  that  such  a  reason  cannot  refer  to  any  rational  impossibility 
in  recognizing  the  validity  of  shifting  future  interests  in  gen- 
eral, since  no  difficulty  is  found  in  their  recognition  and  en- 
forcement when  limited  by  will,"*^ 

^  448.  The  common  law  rule  that  a  fee  cannot  be  limited 
after  a  fee:  In  a  very  considerable  proportion  of  the  cases 
where  our  Supreme  Court  has  said  that  a  fee  cannot  be  limited 
upon  a  fee  by  deed,  it  clearly  appears  that  reference  was  being 
made  to  a  rule  of  the  common  law,  i.  e.,  a  rule  of  the  feudal 
system  of  land  law.  In  one  case,  the  court  said  that  an  attempt 
to  limit  a  fee  on  a  fee  was  void  "by  the  rule  of  the  ancient 
common  law,  which  did  not  permit  any  limitation  of  an  estate 
over  after  the  grant  of  a  previous  fee."  ^**  In  another,  the  court 
says:  "at  common  law  a  fee  could  not  be  limited  upon  a  fee."  ^^ 
In  other  cases,  the  court  has  been  very  careful  to  express  the 
rule  as  a  part  of  the  law  of  remainders,  i.  e.,  future  interests  in 
land  allowed  by  the  feudal  system  of  land  law.^^  xhus,  it  has 
said  that  "a  remainder  limited  after  a  remainder  in  fee  would 
be  void;"^='  and  Jhat  "it  is  one  of  the  rules  governing  con- 
tingent remainders  that  an  estate  cannot  be  limited  over  to 
another  after  a  fee  already  granted.  A  remainder  implies  some- 
thing left,  and  there  can  be  nothing  left  after  the  whole  has 
once  been  disposed  of.  It  is  for  this  reason  tliat  a  fee  already 
granted,  cannot  be  defeated  and  transferred  to  another  by  way 
of  remainder. "  •"''  Practically,  then,  the  basis  put  forward  to 
sustain  the  court's  decisions  and  dicta  to  the  effect  that  shifting 
interests  by  deed  are  void,  is  a  restriction  of  the  feudal  system 
of  conveyancing  upon  the  creation  of  future  interests  in  land  "'^ 

40  Posi,  §§  467  et  seq.  111.  300,  .'i03.  Doubtless  Black- 
so  Peoria    V.    Darst,    101    111.    609,  stone    in    the   passage    quoted    ante, 

616.  §  445,  note  .3;!,  meant  no  more  than 

r.i  Summers  r.  Smith,  127  111.  64.",  a    shifting    future    interest    though 

650.  void   as  a  remainder,   was  good   as 

r>'-iAnie,  §§25,  26,  post,  §451.  an     executory     devise.       See     post, 

■".s  Peoria   v.   Darst,    101    111.    609,  §  449,  note  57. 

619;  McCampbell  V.  Mason,  151  111.  s-^  This    analysis    of    the    court's 

500,  509.  meaning  finds  additional  support  in 

54  Smith   r.  Kimbell,  153  111.  368,  the  court's  ronstant  admission  that 

372.     Sec  also  Palmer  v.  Cook,  159  shifting  interests  by  will  were  valid, 

515 


§  449]  FUTURE   INTERESTS  [Ch.    XVIII 

§  449.  Of  cases  which  hold  the  shifting  interest  by  deed 
valid:  In  all  but  one  of  the  cases  which  sustain  the  shifting 
interest  by  deed,  the  validity  of  the  future  interest  is  assumed. 
The  dictum  of  the  court  in  Ahhott  v.  Ahhott,^^'  however,  gives 
us  the  hint  of  a  reason  for  reaching  such  a  result.  That  dwtum 
is  as  follows:  "Counsel  for  the  appellants,  *  *  *  liave 
argued  with  ability,  and,  we  think,  successfully,  in  support  of 
the  proposition,  'that  where  the  fee  in  the  first  taker  created  by 
a  deed,  is  made  determinable  as  upon  the  happening  of  a  valid 
condition  subsequent,  followed  by  a  limitation  over  of  the  fee  or 
use  to  another  upon  the  happening  of  the  prescribed  event,  the 
fee  or  use  shifts  from  the  first  to  the  second  taker,  where  the 
deed  is  a  conveyance  under  the  Statute  of  Uses,  as  all  of  our 
American  deeds  are,  and  is  a  clear  case  of  shifting  use.'  "  •''" 

§  450.  Reasoning-  of  both  lines  of  cases  valid  so  far  as  it 
g"oes — General  view:  The  usual  result  of  contrasting  the  rea- 
soning upon  which  two  opposite  results  are  supported  is  to 
reach  the  question — which  reasoning  is  correct?  One  position 
must  be  wrong  and  the  other  right.  Thus,  we  reach  a  specific 
issue  for  argument.  In  this  instance,  however,  such  a  course 
does  not  lead  to  this  result  because  it  must  be  conceded  that  both 
lines  of  reasoning  are,  so  far  as  they  go,  unassailable.  It  is 
literally  true  that,  at  common  law,  a  fee  could  not  be  limited 
upon  a  fee, — that  all  shifting  interests  were  void.'''^  It  is  equallj'^ 
true  that,  by  conveyances  operating  under  the  Statute  of  Uses, 
such  future  interests  might  be  limited."*"  It  is  true,  also,  that 
both  of  these  principles  are  preserved  in  our  law  to-day.  This 
will  appear  more  clearly  from  a  brief  survey ;  first,  of  the  com- 
mon law  system  of  conveyancing;  second,  the  development  un- 
der the  Statute  of  Uses ;  and  third,  the  demonstration  that  the 
principles  of  both  systems  are  a  part  of  our  law,  today,  in 
Illinois. 

for,  at  common  law,  there  was   no  se  189  111.  488,  498. 

power     to    devise     lands,    and     the  ^7  in  spite  of  the  language  quoted 

power    of    testators    to    create    fu-  from    Blackstone,   aiite,    §  445,   note 

ture    interest    created    by    way    of  35,  that  learned  writer  clearly  rec- 

wholly    from    the    Statute    of    Wills  ognized  the  validity  of  shifting  fu- 

of  Hen.  VIII  and  modern  wills  acts  ture    interests    created    by    way    of 

following  it — that  is,  by  statute  as  use.     2  Bl.  Com.  3.'54. 

distinguished  from  the  r-ommon  law.  ^^>^  Ante,  §26. 

Post,   §§451,  452.  -'^Ante,  §72. 

516 


CU.    XVIII]       SPRINGING    AND   SHIFTING   INTERESTS  f§451 

§451.  The  common  law  system  of  conveyancing:  In  con- 
sidering the  C'oninion  law  system  of  land  law,  it  should  first  be 
observed  that  we  are  dealing  with  a  system  founded  upon  the 
social  and  political  organization  of  the  middle  ages,  and  de- 
veloped consistently  with  the  requirements  of  feudalism.  In 
this  system  of  land  law  one  of  the  essential  features  was  tenure— 
the  relation  of  the  lord  to  the  vassal— which  carried  with  it  the 
feudal  incidents  and  dues  from  the  vas.sal  to  the  lord.^^  Another 
important  conception  was  that  of  seizin,  or  the  feudal  posses- 
sion of  a  freehold  interest.  So  much  turned  on  the  existence  of 
this  fact  of  seizin  that  one  writer,  at  least,  has  said  of  the  law 
of  land  of  this  period  that  it  "was  not  a  law  of  ownership,  but 
a  law  of  seizin."  *" 

The  feudal  system  required  a  conveyance  of  the  present  free- 
hold interest  to  be  by  livery  of  seizin,*'^ — a  mode  of  conveyance 
w^hich  would  be  found  extremely  inconvenient  today,  since  it 
required  the  presence  of  the  parties  upon  the  land  or  in  sight 
of  it,  and  the  actual  physical  transfer  of  possession  at  the  time 
of  the  conveyance.'^  "^  Freehold  interests  which  could  not  pass 
by  livery  of  seizin,  as  reversions  or  remainders,  must  have  been 
conveyed  by  grant  with  an  attornment  by  the  tenant  in  posses- 
sion. Attornment  was  the  means  by  which  actual  seizin  was 
given  the  transferee,*''^  and  without  it,  therefore,  the  grant  was 
void.'"''  The  requirement  of  attornment  at  the  present  day  would, 
it  is  believed,  be  about  as  inconvenient  as  livery  itself.  The 
alienation  of  real  estate  by  way  of  devise  was  unknown  to  the 
common  law."''' 

With  regard  to  the  creation  of  future  interests,  the  limita- 

00  1   Pollot'k  &   Maitland,   History  Challis    on    Seal    Property,   363-374. 

of  English  Law,  207-332.  For  form  of  deed  of  feoffment  with 

61  "Future  Interests  in  Land,  by  form    for   endorsement   of  livery   of 

Edward     Jenks,"     20     Law    Quart.  seisin,   see   2    Hayes   on   Conveyanc- 

Rev.  280,  282.  ing,  5th  ed.  3. 

82  Co.  Lit.  48a,  b;  1  Gray's  Cases  «3  2   Pollock  &  Maitland,  History 

on  Prop.,  2nd  ed.  352;   2  Pollock  &  of  English  Law,  82  ei  seq. 

Maitland,  History  of  English  Law,  6*"The   Mystery   of   Seisin,"   F. 

82;  Thoroughgood's  Case,  9Co.  136;  W.    Maitland,    2    Law    Quart.    Rev. 

1    Gray's    Cases   on    Prop.,    1st   ed.  481,  490. 

437;  Digby,  History  of  the  Law  of  «5^«/r,  S§  43,  379. 

Real  Property  146  et  scq.:  Williams  ««  Digby,  History  of  Law  of  Real 

on  Real  Property.  17th  ed.  174-176;  Property,   2S,   377;    1    Gray's   Cases 

Pollock     on     Land     Laws,     75,    76;  on  Prop.,  1st  cd.  451,  452,  note. 

:)17 


§  451]  FUTURE   INTERESTS  [Ch.    XVIII 

tions  of  the  common  law  were  particularly  rigid  and  unyielding. 
To  strangers,  onh-  those  future  interests  by  act  of  the  parties 
were  allowed  which  were  bound,  by  express  provision  or  by 
operation  of  law,  to  take  effect,  if  at  all,  whenever  and  however 
the  preceding  interest  determined.^'''  That  reduced  the  possible 
future  interests  of  this  sort  to  those  which  are  properly  called 
remainders.^^ 

If  a  future  interest  to  a  stranger,  when  carried  out  accord- 
ing to  the  settlor's  intent,  was  certain  to  take  effect  by  way 
of  interruption  of  a  preceding  interest,  either  expressly  limited, 
or  resulting  to  the  settlor  by  way  of  reversion,  it  w^as  void.*^^  If 
it  cut  short  or  interrupted  a  preceding  freehold  estate  expressly 
limited,  it  was  a  shifting  interest. "°  It  was  inconsistent  with 
the  feudal  system  of  land  law  because  the  existence  of  such  in- 
terests ' '  would  have  positively  encouraged  dissensions,  or  violent 
interruptions  of  feudal  possession — an  evil  which  it  was  one  of 
the  chief  objects  of  the  King's  courts  to  suppress. ""^  If  the 
future  interest  was  certain,  in  case  it  took  effect  at  all,  to  cut 
short  a  reversionary  interest  in  the  settlor,  it  was  a  springing 
estate.'''^  Its  invalidity  at  common  law  followed  logically  from 
the  nature  of  the  essential  act  of  conveyance  by  livery  of  seizin 
and  grant  with  attornment,  and  "because  any  interval  between 
the  expiry  of  the  particular  estate  and  the  vesting  of  the  re- 
mainder Avould  have  involved  an  abeyance  or  suspension  of  the 
seizin,  i.  e.,  of  that  feudal  possession  upon  which  the  state  levied 
its  dues,  and  to  which  it  looked  for  the  maintenance  of  order."  "^^ 
Lender  these  common  law  rules  governing  the  creation  of  future 

07  Ante,   §  2o.  by   Edward    Jenks,    20    Law    Quart. 

68  7(?.  Kev.    280,    281.      See    also    treatises 

69  Leake,  Digest  of  Land  I^aw,  referred  to,  supra,  note  69,  except 
46-48;  1  Gray's  Cases  on  Prop.,  that  for  the  invalidity  of  shifting 
2nd  ed.  348-.3.50 ;  Digby,  History  of  interests  at  common  law  see  Chal- 
Law  of  Real  Property,  262;  Sug-  lis  on  Real  Property,  2nd  ed.  71-73. 
den  on  Powers,  8th  ed.  26;  1  Hayes  '■^  Ante,  §  26. 

on  Conveyancing,  .5th  ed.   Ill,  112;  73  "Future    Interests    in    Land," 

Challis  on  Real  Property,  2d  ed.  90,  by   Edward   Jenks,   20    Law   Quart. 

93  ei  seg.    Per  Baker,  P.  J.,  in  Vin-  Rev.     280,      281.        "The     King's 

son  V.  Vinson,  4  111.  App.  138,  140,  Courts,"  says  the  same  writer,  "re- 

ante,  §  26.  garded  an  abeyance  of  the  seisin  as 

''(>  Ante,   §26.  only  less  perilous  than  an  interrup- 

71  "Future    Interests    in    Land,"  tion  of  the  seisin." 

5ia 


ClI.    XVIII]       SPRINGING   AND   SHIFTING   INTERESTS  [§452 

interests,  a  pi-t'sent  conveyance  to  A's  children,  A  not  having 
any  child  at  the  time,  was  entirely  ineffective.'^  So,  if  A  had 
a  child  at  the  time  of  the  transfer,  that  child  alone  took,  though 
the  feoffment  was  expressed  to  be  to  the  "children  of  A  born 
and  to  be  born."  "^  Thus,  did  the  common  law  system  of  con- 
veyancing refuse  to  countenance  the  giving,  by  act  of  the  parties 
or' by  operation  of  law,  an  estate  to  one  and  afterwards  divesting 
it  to  any  extent  in  favor  of  another. 

The  future  interest  after  a  particular  estate  of  freehold  could 
be  limited  on  such  a  contingency  that,  until  the  event  happened, 
there  would  be  an  uncertainty  as  to  whether  it  would  take  effect 
by  way  of  succession  or  interruption.  This  was  the  case  where 
the  future  interest  was  limited  after  a  particular  estate  of  free- 
hold upon  a  contingency  which  might  happen  either  before,  or 
at  the  time  of,  or  after,  the  termination  (whenever  and  in  what- 
ever manner)  of  the  preceding  estate.'*^  In  that  case  the  future 
interest  would  take  effect  by  way  of  succession  or  interruption, 
according  as  the  event  upon  which  it  depended,  happened  before 
or  at  the  time  of,  or  after,  the  termination  (whenever  and  how- 
ever) of  the  preceding  estate."  In  short,  there  would,  from 
the  start,  be  a  chance  that  the  future  interest  would  take  ef- 
fect by  way  of  succession.  At  first  such  future  interests  were 
held  entirely  void.  By  1430,  however,  the  rules  of  the  com- 
mon law  system  of  conveyancing  were  so  far  relaxed  that  the 
future  interest  of  this  sort  was  allowed  to  take  effect,  provided 
it  did  so  by  way  of  succession,  i.  e.,  if  the  event  happened  be- 
fore or  at  the  time  of  the  termination  (whenever  and  however) 
of  the  preceding  estate  of  freehold.     Otherwise  it  was  void.'^ 

§  452.  Development  under  the  Statute  of  Uses :  The  en- 
forcement of  uses  by  the  chancery  before  the  Statute  of  Uses 
of  Hen.  VIII,  and  the  turning,  by  the  statute,  of  those  uses  into 
legal  estates,  worked  important  and  striking  changes  in  the 
feudal  or  common  law  system  of  conveyancing. 

Before  the  Statute  of  Uses,  land  was  conveyed  to  such  uses 
as  the  feoffor  should  appoint  by  will,  and,  when  the  chancery 
enforced  the  use  so  appointed,  the  right  to  devise  lands  was 

74  1   Hayos  ou  Conveyancing,  5tb  i'a  Ante,   §§27,   28,  96,   309. 

ed.  119.  ■''  Id. 

15  Jd.  i»Ante,  §§28,  97. 

519 


§  452]  FUTURE   INTERESTS  [Ch.    XVIII 

to  a  certain  extent  accomplished."-'  The  effect  of  the  Statute  of 
Uses,  was,  it  has  been  said,  to  interrupt  this  practice,'^"  but  the 
Statute  of  Wills  of  Henry  VIII  ^^  directly  established,  to  a 
limited  extent,  the  validity  of  testamentary  conveyances. 

The  Statute  of  Uses,  among  other  things,  did  away  with  all 
the  inconvenience  of  livery  of  seisin  resulting  from  the  require- 
ment that  the  parties  go  upon  the  land,  or  within  sight  of  it, 
at  the  time  of  the  transfer,  and  actually,  then  and  there,  de- 
liver possession.  By  a  covenant  to  stand  seised  to  uses,  or  by 
a  bargain  and  sale  (enrolled),  or  by  a  lease  for  a  year  operating 
as  a  bargain  and  sale  without  entry,  and  a  subsequent  release, 
operating  at  common  law,  the  legal  title  might  at  all  times  be 
transferred  by  acts  done  in  a  solicitor's  office.^^  gy  similar 
modes  of  conveyance  the  transfer  of  a  remainder  or  reversion 
might  be  effected  without  attornment.^^ 

The  most  marked  change  in  the  development  of  the  law  of 
conveyancing  which  occurred  under  the  Statute  of  Uses  was 
the  new  liberty  allowed  in  the  creation  of  future  interests. 
Before  the  statute  the  chancery  carried  out  springing  and  shift- 
ing uses  as  trusts,^*  and  after  the  statute  these  springing  and 
shifting  interests  by  way  of  use  were  turned  into  springing  and 
shifting  legal  estates.^'^  Thus,  it  became  possible,  by  the  crea- 
tion and  exercise  of  powers  of  appointment,  to  limit  a  legal 
future  interest,  taking  effect  by  way  of  interruption  long  after 
the  execution  of  the  original  conveyance  under  which  the  legal 
title  was  transferred.^^^     In  the  same  way,  it  became  possible 

''s  Gray's    Eule    against   Perpetui-  158;  Digby,  History  of  Law  of  Real 

ties,   §53;    Pollock   on    Land   Laws,  Property,  332;  Gray's  Rule  against 

95,  96.  Perpetuities,  §§  52,  135,  136,  138. 

80  Sugden  on  Powers,  8th  ed.  20 ;  ss  1  Hayes  on  Conveyancing,  5th 

Pollock  on  Land  Laws,  102;  Gray's  ed.    113-115;    Pollock,    Land    Laws, 

Rule  against  Perpetuities,   §53.  124-125;     Leake,     Digest     of    Laud 

8132  Hen.  VIII,  C.  L   (1540);   4  Law,    112-113;    1    Gray's    Cases   on 

Gray's  Cases  on  Prop.,  2nd  ed,  30.  Prop.,  2nd  ed.  402;   Digby,  History 

82  Pollock    on    Land    Laws,    104-  of  Law  of  Real  Property,  357-360 ; 

107;   Digby,  History  of  the  Law  of  Challis    on   Real   Property,    157-159, 

Real    Property    357;     Williams    on  161-164;    Fearne,    Cont.    Rem.   372; 

Real  Property,  17th  ed.  233 ;  1  Hayes  Sugden    on    Powers,    8th    ed.   26-28, 

on    Conveyancing,    5th    ed.    118;     1  32-34;     Gray's    Rule    against    Per- 

Gray's  Cases  on  Prop.,  2nd  ed.  395.  petuities,  §  52. 

63  Ante,  §379.  86  Leake,    Digest    of    Land    Law, 

8*  Challis  on   Real   Property,   157-  114;     Sugden    on    Powers,    8th    ed. 

520 


ClI.    XVJIIJ       SI'RINHilNG    AND   SHIFTING   INTERESTS  f  §  4-32 

to  provide,  in  a  manner  before  unknown,  for  the  substitution 
of  new  trustees  in  plaee  of  old  ones  by  means  of  a  simple  shift- 
ing use,  or  a  use  whieh  shifted  upon  appointment  by  some  desig- 
nated person.  This  practice,  as  we  have  seen,^"  has  continued 
down  to  the  present  day.  The  new  freedom  in  conveying  the 
title  to  real  estate  under  the  Statute  of  Uses  was  strikingly  ex- 
hibited in  the  case  of  gifts  to  a  class  of  persons.  "Thus,"  says 
Ilayes,^^  "if  A  conveyed,  at  the  common  law,  to  the  'children' 
of  B,  who  had  no  child  then  in  being,  the  conveyance  was  sim- 
ply void.  If  A  conveyed,  at  the  common  law,  to  the  'children 
born  and  to  be  born'  of  H,  who  had  a  child  or  children  then  in 
being,  the  estate  vested  in  such  child  or  children  to  the  exclu- 
sion of  after-born  children.  But  if  A  conveyed  to  B,  to  the 
use  of  the  'children'  of  B,  who  had  no  child  at  the  time  of  the 
conveyance,  the  use  was  a  valid  disposition  in  favour  of  all  his 
future  children.  If  A  conveyed  to  B.  to  the  use  of  'children 
born  and  to  be  boni'  of  B,  who  had  a  child  or  children  then  in 
being,  the  use  was  executed  in  such  child  or  children,  not  finally, 
but  with  a  capacity  of  enlarging  to  admit  the  after-born  chil- 
dren." 

By  a  curious  historical  development  one  very  great  restric- 
tion upon  the  creation  of  executory  interests  by  way  of  use  was 
retained  from  the  common  law. 

Within  a  few  years  after  the  Statute  of  Uses  it  had  been  held 
that  springing  and  shifting  uses  w^ere  valid  and  operated  to 
confer  springing  and  shifting  legal  estates.*"^  Logically,  it  should 
have  followed  that  the  future  interests  were  indestructible.®" 
Until  1599,  however,  the  impression  seems  to  have  obtained  that 
they  w^ere  destructible  upon  some  analog^'  to  the  rule  of  the 
common  law,  which  caused  certain  contingent  future  interests 
to  fail  entirely  unless  they  took  effect  as  remainders,  by  way 
of  succession.''^  That  analogy  was  entireh*  superficial  and  im- 
proper in  all  cases  of  contingent  future  interests  except  one.®^ 
If  to  be  applied  at  all,  it  was  appropriate  only  to  the  case  of 
future  uses,  limited  after  a  particular  estate  of  freehold  upon 

17-18;    1    Hayes    on    Conveyancing,  ^^  Ante,  U  72,  85. 

5th  cd.  70  et  seq.  8o7<f. 

»T  Ante,  §  444.  "i  Id. 

88  1  Hayes  on  Conveyancing,  otb  ^- Anite,  S§  77,  97. 
ed.  110. 

521 


§  453]  FUTURE   INTERESTS  [CH.    XVIII 

a  contingency  which  might  occur,  either  before  or  after,  or  at  or 
after,  the  termination  (whenever  and  in  whatever  manner)  of 
the  preceding  estate.  Here,  since  the  future  interest  might  pos- 
sihJy  take  effect  as  a  remainder  by  way  of  succession,  there  was 
presented  exactly  the  case  where  the  common  law  required  it 
to  do  so,  or  to  fail  entirely.  It  was  held  in  the  1590s  that  this 
restriction  of  the  common  law  upon  the  creation  of  future  in- 
terests applied  to  contingent  future  uses  of  the  same  descrip- 
tion.^^ It  was  in  the  course  of  upholding  the  decisions  of  this 
decade  that  the  rule  came  to  be  stated  that  every  gift  which 
can  take  effect  as  a  remainder  absolutely  excludes  its  being 
treated  as  an  executory  devise  or  a  springing  use.  Such  con- 
tinued to  be  the  law  down  to  the  time  of  the  English  contingent 
remainders  acts  of  the  19th  century.^^ 

It  is  believed  that  this  rule  of  law  represents  the  extreme  limit 
to  which  the  validity  of  future  uses  were  controlled  by  the  re- 
strictions of  the  common  law.^^  Its  only  effect  was  to  place  a 
limitation  upon  the  creation  of  such  contingent  uses  as  might 
possibly  take  effect  by  way  of  succession.  Pells  v.  Brown,^^  in 
1620,  however,  settled  it  that  future  interests  which  were  abso- 
lutely incapable  of  taking  effect  in  possession  by  way  of  suc- 
cession, i.  e.,  what  have  been  called  springing  and  shifting  fu- 
ture interests,  were  indestructible.  These  were  wholly  void  at 
common  law  because  they  could  not  possibly  take  effect  as  re- 
mainders. When  recognized  at  all,  in  conveyances  by  way  of 
use,  they  were,  therefore,  entirely  valid. 

§  453.  The  principles  of  the  common  law  and  of  the  system 
of  conveyancing-  which  developed  under  the  Statute  of  Uses 
exist  side  by  side  as  part  of  the  law  of  Illinois  today:  Ob- 
serve, now,  that,  of  these  two  s^ystems, — the  feudal  or  common 
law,  and  uses  under  the  Statute  of  Uses, — the  older  was  never 

93  Id.  these  eases  have  been  subjected,  it 

94  Ante,  §  97.  may  well  be  doubted  whether  they 

95  It  is  true  that  in  Adams  v.  stand  as  law.  Gray's  Kule  against 
Savage,  2  Ld.  Eaym.  854;  2  Salk,  Perpetuities,  §§58-60.  "A  Point 
601,  679,  and  Eawley  v.  Holland,  in  the  Law  of  Executory  Limita- 
22  Vin.  Ab.  189;  2  Eq.  Cas.  Ab.  tions,"  by  Henry  W.  Challis,  1  Law 
753,  it  was  held  that  a  contingent  Quar.  Rev.  412;  and  Sugden  on 
future    interest    after    a    term    for  Powers,  8th  ed.  35  et  seq. 

years    was    wholly    void.      In    view,  "b  Cro.  .Tac.  590;  2  Roll.  Eep.  196; 

however,  of  the  criticisms  to   which       ante,    §  85. 

522 


CH.    XVIlll       SPRINGING    AND   SIIH-^'ING    INTERESTS  [§453 

directly  abolished  by  that  which  came  after.  The  second,  for 
the  time  being  at  least,  left  the  first  standing  in  full  force.  The 
Statute  of  Uses,  while  it  furnished  the  basis  for  a  freer  and  more 
flexible  system  of  conveyancing,  which  eventually  superseded 
the  feudal  or  common  law  system,  never  by  legislative  enact- 
ment, abolished  the  latter."'  The  rules  of  both  these  systems, 
existing  as  they  did  side  by  side,  have  come  down  to  us  in  Illi- 
nois. Even  if  this  be  not  so  because  of  our  connection  with 
England  through  the  Virginian  colonial  government,  tlio  North- 
west Territory  and  the  territorial  government  of  Illinois,  it  is 
clearly  established  by  an  early  act  of  our  state  legislature.^^ 

Are  not,  therefore,  the  common  law  modes  of  conveyance  the- 
oretically, at  least,  in  force  in  this  state?    In  Fisher  v.  Deering,^^ 
our  Supreme  Court,  as  we  have  seen,i  ^ent  very  far  toward  say- 
ing that  the  common  law  conveyance  by  grant  and  attornment, 
was  the  only  mode  by  which  a  reversion  or  remainder  could  be 
transferred.     It  is  clear  that  since  1873,  at  least,  no  attorn- 
ment is  necessary.    The  dictum,  however,  of  Fisher  v.  Deering 
must  stand  for  this  at  least,— that  you  can  use  such  a  form  of- 
conveyance  if  you  want  to.    Why,  then,  may  you  not  transfer 
a  present  freehold  interest  by  livery  of  seizin  if  you  care  to  take 
the  trouble  to  do  so?     There  certainly  is  no  statutory  aboli- 
tion of  livery  of  seizin.     Sec.  1  of  the  Act  concerning  Convey- 
ances ^   is  very  particular  not  to  abolish  it.     That  act  reads: 
"Livery  of  seizin,  shall  in  no  case  be  necessary  for  the  convey- 
ance of  real  property."    The  hint  is,  indeed,  thrown  out  in  sev- 
eral cases  that  livery  of  seizin  has  been  abolished.^     Strictly, 
this  is  not  so.     Livery  of  seizin,  it  is  true,  is  quite  unnecessary, 
even  without  the  statutoiy  enactment,  because  of  the  statutory 
forms   now    in   use,^    and   because   the   Statute   of   Uses   is   in 

97  Livery  of  seisin  for  example,  -  E.  L.  1827,  p.  95,  see.  1 ;  R.  S. 
continued  to  be  used  in  England  as  1845,  Ch.  24,  sec.  1,  p.  102;  R.  S. 
a  mode  of  conveyance  into  the  19th  1874,  Ch.  30,  sec.  1;  1  A.  &  D.  R. 
century.       "Seisin,"     by     Charles  E.  S.  pp.  75,  100. 

Sweet,  12  Law  Quart.  Rev.  289.  3  Wall  v.  Goodenough,  16  111.  415, 

98  In  force  Feb.  4,  1819.  Revised  418;  Witham  v.  Brooner,  63  111. 
Laws  1833,  p.  425;  R.  S.  1845,  Ch.  344,  346;  Shackelton  r.  Sebree,  86 
62,  sec.  1;  R.  S.  1874,  ch.  28.  See  111.  616,  621;  Latimer  v.  Latimer, 
also  Baker  r.  Scott,  62  111.  86,  94  174  111.  418,  429;  Vinson  v.  Vinson, 
et  seq.  4  111.   App.   138,  140-141. 

09  60  111.  114.  *  R-   S.   1874,   ch.   30,  sees.   9,   10, 

^Ante,  §379.  11. 

523 


§454]  FUTURE    INTERESTS  [Ch.    XVIII 

t'orce,^  by  which  validity  is  practically  given  to  all  deeds  of  con- 
veyance as  bargains  and  sales.  Furthermore,  livery  of  seizin  in 
actual  use  is  unknown.'"'  There  is  nothing,  however,  which  de- 
clares that  it  shall  not  be  used. 

It  would  seem,  also,  on  the  same  reasoning,  that  the  feudal 
rules  concerning  the  creation  of  future  interests  are  very  prop- 
erly recognized  by  our  Supreme  Court  ^  as  in  force  in  this  state. 
It  is,  then,  perfectly  accurate  for  the  court  to  reiterate,  as  it 
has  done,  that,  by  the  ancient  common  law,  a  fee  cannot  be 
mounted  upon  a  fee,^  If,  therefore,  a  shifting  interest  were 
attempted  to  be  created  in  a  conveyance  by  livery  of  seizin, 
which  could  not  possibly  take  effect  in  any  other  way,  it  would 
be  void.  So,  if,  a  conveyance,  which  can  only  take  effect  as  a 
transfer  by  livery  of  seizin,  be  made  to  the  children  of  A,  "born 
and  to  be  born,"  it  is  wholly  void  to  confer  any  rights  upon 
those  children  who  are  not  in  esse  at  the  time  of  the  convey- 
ance. These  rules  may  now,  however,  be  avoided  in  this  state 
exactly  as  they  were  in  England  since  the  time  of  Hen,  VIII, 
by  a  conveyance  operating  under  the  Statute  of  Uses. 

§  454.  The  special  issue :  From  this  point  the  solution  of 
our  problem  as  to  the  validity  of  shifting  interests  by  deed 
in  Illinois  becomes  very  simple.  Having  found  it  to  be  lit- 
erally true  that,  under  the  common  law  system  of  land  laws, 
the  limitation  of  a  fee  upon  a  fee  was  impossible ;  that,  by  a 
conveyance  operating  under  the  Statute  of  Uses,  such  a  limi- 
tation was  perfectly  valid ;  and  that  the  common  law  rules  and 
the  Statute  of  Uses  are  both  in  force  in  this  state  today,  the 
real  question  becomes  this :  Are  shifting  limitations  in  a  deed, 
in  the  usual  form  adopted  in  this  state,  dependent  for  their 
validity  upon  the  application  of  the  common  law  rules  regarding 
remainders  or  upon  the  law  of  future  interCvSts  as  developed 
under  the  Statute  of  Uses?    This  is  to  be  settled  in  favor  of  the 

5E.  L.   1827  p.  96,  sec.   3;   K.   S.  act  by  the  English  courts:   Re  Qua 

1845,  ch.  24,  sec.  3;  E.  S.  1874,  ch.  v.  Graham,  187  111.  67;  Glaubensklee 

30,  sec.  3;   1  A.  &  D.  R.  E.  S.  pp.  v.  Low,   29   111.   App.  408;    Cole  v. 

75,  103.    See  also  Witham  v.  Broon-  Bentley,  26  111.  App.  2G0. 

er,   63    111.    344.      It   must   be   clear  «  Shackclton  o.  Sebree,  86  111.  616, 

also   that,   by  the   incorporation   of  621. 

the   Statute   of   Uses  into  our   law,  "!  Ante,  §448. 

we  have  adopted  the  general   prin-  s  Jd. 
ciples  of  the  interpretation   of  that 

524 


Ch.    XVIII]       SPRINGING    AND  SHIFTING   INTERESTS  [§456 

application  of  tlic  eonunon  law  rules  if  a  oonveyanec,  iu  the  or- 
dinary form  in  use  in  this  state,  operates  solely  as  a  common  law 
conveyance.  If  it  operates  under  the  Statute  of  Uses,  then 
the  future  shifting  interest  must  be  valid.  If  it  operates  under 
any  modern  conveyancing  act  it  may  be  valid. 

§  455.  Shifting  limitations  by  deed  may  be  supported  here 
by  force  of  the  Statute  of  Uses — Conveyances  by  deed  in  Illi- 
nois have  never  operated  under  the  common  law:  The  first 
argument  in  support  of  the  proposition  that  shifting  limitations 
by  deed  may  be  sustained  under  the  Statute  of  U.ses  is,  that  the 
usual  deed  in  this  state,  conveying  a  freehold  interest  has  prac- 
tically never  acquired  its  force  from  the  common  law  at  all. 
At  comrtion  law,  a  present  freehold  interest  must  have  been  con- 
veyed by  livery  of  seizin ;  a  reversion  or  remainder,  by  grant 
with  attornment.  It  is  a  matter  of  common  knowledge  that 
livery  of  seizin  has  never  been  used.  Attornments  may  have 
been  made  upon  grants  of  reversions  or  remainders,  but  it  is 
believed  that,  except  in  case  of  the  transfer  of  reversions  after 
terms  for  years  w^here  the  tenants  paid  rent,  formal  attornment 
was  not  usually  demanded.^  The  application  of  the  feudal  rule 
of  remainders,  that  you  cannot  limit  a  fee  on  a  fee,  survives  at 
the  present  day  only  as  an  academic  possibility,  since  the  case 
for  the  application  of  such  a  rule  would  only  arise  if  a  con- 
veyance attempting  to  limit  a  fee  on  a  fee  were  made  in  such 
form  that  it  could  not  possibly  take  effect  otherwise  than  at 
common  law.  This  would  narrow  the  possibility  practically  to 
the  case  of  a  conveyance  by  livery  of  seizin  of  a  present  freehold 
interest. 

§  456.  Conveyances  by  deed  in  Illinois  have  always  taken 
effect  under  the  Statute  of  Uses:  As  soon  a,s  there  came  to 
be  in  force  in  England  two  modes  of  transferring  the  title  to 
real  estate  ijiter  vivos,  each  quite  distinct  in  character,  one  at 
common  law  and  the  other  under  the  Statute  of  Uses,  by  one 
of  which  the  conveyance  might  be  void  and  by  the  other  valid, 
it  became  necessary  to  announce  a  rule  for  the  construction  of 
conveyances  so  that  it  might  be  ascertained  whether  any  given 
transfer  operated  under  one  system  or  the  other.  The  principle 
was  early  promulgated,  and  ever  since  maintained,  that  an  in- 

9  See  cases  of  transfer  of  remain- 
ders after  a  life  estate,  ante,  §  379. 

525 


§456]  FUTURE    INTERESTS  [Cn.    XVili 

strumeiit  of  conveyance  may  be  sustained  upon  whichever  sys- 
tem it  is  necessary  to  rely  in  order  to  carry  out  the  intention 
of  the  parties.  This  was  so  when  the  question  was  whether  a 
conveyance  of  a  present  interest  was  effective.  The  mode  of 
transfer  might  be,  in  form,  a  grant  at  common  law  without  at- 
tornment, or  a  deed  of  feoflfment  without  livery,  and  so,  in  either 
case,  inett'ective  under  the  common  law  system  of  conveyancing. 
Yet,  if  it  were  for  a  consideration  of  blood  or  for  a  valuable  con- 
sideration, or  if  a  consideration  of  money  were  even  mentioned, 
the  conveyance  was  valid  under  the  Statute  of  Uses.^*^  The  same 
rule  applied  with  regard  to  future  interests.  Springing  and 
shifting  future  interests  which  could  not  take  effect  by  a  com- 
mon law  conveyance,  were  perfectly  valid  if  the  conveyance,  by 
which  they  were  attempted  to  be  created,  could  take  etfect  as  a 
covenant  to  stand  seized  or  a  bargain  and  sale.^^ 

The  law  was  equally  liberal  as  to  what  amounted  to  a  bar- 
gain and  sale  or  covenant  to  stand  seized.  For  the  former  it  was 
only  necessary'  to  have  any  language  showing  an  intent  to  trans- 
fer title  and  a  consideration,  however  insignificant,  actually 
given. ^-  If  the  instrument  be  under  seal  the  recital  of  the  giv- 
ing of  some  consideration  could  not  be  denied  by  the  parties, 
so  that  the  mention  of  the  giving  of  a  consideration  was  as  ef- 
fective to  make  a  bargain  and  sale  as  the  act  itself  would  have 
been.^''  If  so  much  of  the  Statute  of  Enrollments  ^^  as  requires 
a  bargain  and  sale  of  a  freehold  to  be  created  by  an  instrument 
under  seal,  is  not  in  force  here,  then  a  bargain  and  sale  does 
not  require  a  seal.^^     For  a  covenant  to  stand  seized,  only  an 

10  Edward  Fox 's  Case,  8  Co.  93b ;  1  Gray  's  Cases  on  Prop.,  2nd  ed. 
1   Gray's   Cases    on    Prop.,    1st    ed.       389. 

489.  i;«3    Gray's   Cases   on   Prop.,   2nd 

11  Roe  V.  Tranmer,  2  Wils.  75;  ed.  249,  note  on  recital  of  considera- 
1  Gray's  Cases  on  Prop.,  2nd  ed.  tion;  also  Vinson  v.  Vinson,  4  111. 
391;  Eraser's  note  to  Edward  Fox's  App.  138;  111.  Cent.  Ins.  Co.  v.  Wolf, 
Case,  8  Co.  93b;   1  Gray's  Cases  on  37  111.  354. 

Prop.,  1st  ed.  490.  1*27  Henry  VIII,  ch.   16   (153G), 

See    also   H.    Clay    Horner's   eon-  1    Gray's   Cases   on   Prop.,   2nd   ed. 

tribution    on    this    subject,    dealing  382-383. 

with     the    Illinois    cases;     Chicago  i'>  Tiedeman    on     Real     Property, 

Legal   News   of   July    12,    1902,    p.  2nd  ed.  §  783.     See,  however,  Jaek- 

375.  son    d.    Gouch    v.   Wood,    12    Johns. 

1-' Barker    v.   Keete,    Precm.    249,  (N.  Y.)   73. 

526 


ClI.    XVIIIJ       SI-RINGING    AND   SHIFTING   INTERESTS  [§457 

instrument  under  seal  was  necessary,  purporting  to  convey  title 
to  the  blood  relation  of  the  transferor.^" 

It  must  be  apparent,  then,  that  the  form  of  deed  of  convey- 
ance, which  has  been  used  as  far  back  as  our  records  go,  and 
which  is  now  in  use  in  this  state,  is  entirely  capable  of  taking 
effect  as  a  bui-jxain  and  sale.^^  It  always  purports  to  be  a  trans- 
fer of  title.  It  always  contains  the  recital  of  a  consideration 
paid.  It  is  always  under  seal.  If  it  is  made  to  the  transferor's 
blood  relation,  it  may  also  take  effect  as  a  covenant  to  stand 
seized.  The  well  sf^ttled  rule,  then,  applies.  If  it  be  necessary 
ill  order  to  support  the  validity  of  a  shifting  interest,  the  con- 
veyanee  will  take  etl'ect  as  a  bargain  and  sale  or  a  covenant  to 
stand  seized  under  the  Statute  of  Uses. 

ij  457.     The  fact   that   our   deeds   in   Illinois   may  operate 
under  the  acts  of  1827  and  1872  cannot  interfere  with  the 
validity  of  shifting  interests  created  by  them:     It  is  believed 
that  not  a  few  conveyancers  in  Illinois,  if  asked  to  put  their 
finger  upon  the  authority  which  gives  force  to  our  deeds  to  pass 
a  title,  would  refer  to  the  act  of  1872  providing  for  the  statutory 
forms  of  conveyance.! 8     If  the  transfer  occurred  before  1872, 
they  would  fall  back  upon  section  1  of  the  Act  of  1827  concern- 
ing Conveyances.'^     It  would  at  once  occur  to  these  lawyers 
that,  while  all  that  has  been  said  about  conveyances  under  the 
Statute  of  Uses  may  be  true,  yet  our  deeds  do  not  operate  under 
such  a  statute,  and,  therefore,  it  may  perhaps  be  held  that  the 
common  law  rules  apply  and  that  shifting  interests  cannot  be 
created  by  conveyances  operating  under  our  modern  statutes. 
This  position  may  seem  to  some  too  fallacious  to  reciuire  answer- 
ing, and  yet  it  is  believed  that  there  is  nothing  connected  with 
the  problem  under  discussion  that  does  not  require  patient  ex- 
amination. 

Even  if  it  be  admitted,  for  the  sake  of  argument,  that  our 
modern  statutes  giving;  effect  to  conveyances  by  deed  in  the 

leCallard  v.  Callard,  Moore  687;  i«  Laws  1871-2,  p.  282,  sees.  2,  9, 

1   Gray's   Cases  on   Prop.,   2nd   ed.  10,   11. 

386;    Roe   v.   Tranmer,   2  Wils.   75;  i^  R.  L.  1827,  p.  95,  sec.  1 ;  R.  S. 

1    Gray's   Cases   on   Prop.,   2nd   cd.  1845,  ch.  24,  sec.  1   (p.  102);  R.  S. 

391.  1874,  ch.  SC,  sec.  1;   (1  A.  &  D.  R. 

17  Sliackelton     r.    Scbrco,    86    111.  E.  S.  pp.  75,  100). 
616,  621. 

527 


§  458]  FUTURE    INTERESTS  [Ch.    XVIII 

usual  form,  do  not  authorize  the  creation,  by  such  deeds,  of 
shifting  future  interests,  yet  such  modern  statutes  do  not  in 
any  way  preclude  the  operation  of  such  deeds  under  the  Stat- 
ute of  Uses  if  they  are  in  proper  form.  They  simply  give  a 
cumulative  ground  for  sustaining  the  convej'ance  by  deed.  The 
situation  is  not  essentially  different  from  that  which  existed 
when  one  might  convey  either  under  the  Statute  of  Uses  or  at 
common  law  by  livery  of  seizin  or  grant  and  attornment.  Then, 
it  was  the  rule  founded  upon  the  desire  of  the  courts  to  sup- 
port conveyances,  that  if  the  mode  of  transfer  failed  as  a  con- 
veyance at  common  law,  it  might  nevertheless  take  effect  under 
the  Statute  of  Uses.  It  is  submitted,  therefore,  that  if,  at  the 
present  time,  there  be  any  difference  in  the  extent  to  which  a 
future  interest  may  be  created  by  a  deed  operating  under  the 
Statute  of  Uses  and  under  modern  statutes,  and  the  deed  may 
operate  under  either,  it  will,  in  order  to  give  effect  to  the  intent 
of  the  parties,  operate  as  that  mode  of  conveyance  by  which 
the  future  interest  in  question  may  be  created. 

§  458.  Shifting  interests  by  deed  may  be  supported  in  Illi- 
nois under  the  acts  of  1827  and  1872:  In  reality,  however, 
there  is  not  the  slightest  ground  for  saying  that,  under  our 
Illinois  statutes  giving  effect  to  conveyances,  shifting  future  in- 
terests cannot  be  created. 

The  reasons  why  such  future  interests  could  not  be  created 
under  the  common  law  system  had  reference  only  to  the  ex- 
igencies of  tenure  and  the  necessities  of  seizin  and  of  conveyance 
by  livery.  Neither  the  Statutes  of  Uses  or  Wills  in  terms  gave 
any  power  to  create  shifting  future  interests.  The  reasons  in 
support  of  their  validity  under  those  statutes  seem  to  have  been 
as  follows :  It  was  argued  that,  as  such  interests  were  valid  by 
way  of  use  before  the  statute,  and,  as  the  statute  turned  uses 
into  legal  estates,  shifting  uses  became  shifting  legal  estates. 
Before  the  Statute  of  Uses  upon  a  feoffment  to  the  use  of  the 
feoffee's  will,  shifting  uses  might  be  created  by  will.^"  So,  after 
the  Statute  of  Wills  direct  shifting  devises  of  legal  interests  were 
permitted.2i  The  result  in  both  instances  was  doubtless  aided 
by  the  fact  that  conveyances  to  uses  and  devises  after  the  Stat- 
utes of  Uses  and  Wills  were  modes  of  transferring  title  without 

2"  Pollock,  Land  Laws,  91.  21  jd,  9S. 

528 


CH.    XVIII]       SPRINGING    AND  SHIFTING   INTERESTS  [§  458 

the  common  law  formality  of  livery  and  seizin  or  grant  and  at- 
tornment.2-  Finally,  it  is  believed  that  the  feudal  organization 
of  society  was,  in  the  reign  of  Hen.  VIII,  so  far  giving  way  to 
the  more  modern  or  commercial  order  of  things,  that  the  reasons 
for  the  feudal  prohibition  upon  such  springing  interests  no 
longer  existed. 

At  least  two  of  those  reasons  arc  distinctly  applicable  to  our 
modern  conveyancing  acts,  with  this  difference,  however,  that 
the  lapse  of  time  has  intensified  almost  beyond  calculation  in 
words,  their  compelling  force.  An  odd  relic  here  and  there 
of  the  feudal  system  of  land  law  may  remain,  but  the  system  as 
such  and  the  social  and  political  conditions  which  gave  it  birth, 
have  not  existed  for  at  least  two  or  three  centuries  in  England, 
and  never  did  exist  on  this  side  of  the  Atlantic.  There  can, 
therefore,  be  no  reason  for  attaching  to  conveyances,  under  our 
modern  statutes,  the  restrictions  of  the  feudal  system.  They 
should  be  handled  in  accordance  wath  the  modern  effort  to  give 
the  greatest  liberty  to  land  owners  in  the  disposition  of  their 
property.  The  reason  in  favor  of  springing  and  shifting  uses 
and  executory  devises,  that,  in  conveyances  under  the  Statutes 
of  Uses  and  Wills,  no  feudal  formality  was  required,  certainly 
applies  with  peculiar  force  when  urged  in  support  of  similar 
interests  created  under  our  modern  conveyancing  acts. 

Our  Supreme  Court  has  actually  approved  and  acted  in  ac- 
cordance with  this  reasoning  in  holding  that,  UEUTCi-  the  act  of 
1827,  a  grantor  may  by  deed  limit  a  life  estate  to  ^imself.^^ 
This,  it  is  conceded,  was  impossible  at  common  law.^^  But  it 
was  argued  that  the  rule  of  the  common  law  depended  upon 
the  principles  of  feudal  land  law  and  the  requirements  of  con- 
veyances by  livery  of  seizin  and  that  these  considerations  had 
no  place  in  Illinois  today.  The  statute  of  1827,  therefore,  al- 
lowed the  grantor  to  carry  out  his  intention.  Exactly  this 
same  reasoning  will  apply  to  warrant  the  inference  that  shift- 
ing interests  by  deed  operating  under  the  acts  of  1827  and  1872 
alone,  are  valid.  Such  is  the  actual  effect  given  to  similar  stat- 
utes in  other  states.^^     This  view  is  strictly  in  accord  with  the 

22  Dighy,  History  of  Law  of  Real  24  post,   §  463. 

Property,  332.  -5  Gray's   Rulo    against   Perpetui- 

23  Shackelton    v.    Sebree,    86    HI.       ties,  §§  67,  68,  citing  Abbott  r.  Hoi- 
(516;  post,  §463.  way,   72  Me.   298:    Gorham   r.  Dau- 


Kales  F\it.  Int.— 34 


Of) 


§  459]  FUTURE    INTERESTS  [Ch.    XVIII 

way  uses  were  treated  after  they  had  received  recognition,  and 
in  direct  analogy  to  the  results  reached  under  the  Statute  of 
Wills. 

§  459.  The  tendency  to  hold  shifting  future  interests  by 
deed  invalid  is  reactionary — Character  of  the  changes  in  the 
law  of  conveyances:  It  Mas  doubtless  consistent  with  the 
system  of  feudalism  that  the  transfer  of  land  should  have  been 
permitted  only  with  the  formality  of  livery  of  seizin  and  that 
testamentary  dispositions  should  be  unknown.  It  was,  doubt- 
less, equally  proper  that  no  springing  or  shifting  interests  should 
have  been  permitted.  It  may  even  have  been  necessary  to  the 
retention  of  the  feudal  system  that  the  intent  of  individuals 
in  dealing  Avith  their  lands  should  be  thwarted  in  this  manner. 
When,  however,  the  feudal  system,  as  a  real  condition  of  society, 
fell  into  decay,  when  feudal  England  was  becoming  commer- 
cial England,  the  new  social  organization  demanded  new  free- 
dom from  the  restraints  of  the  common  law.  The  history  of 
uses  before  the  Statute  of  Uses  reveals  a  struggle  to  break  free 
from  the  burdens  of  tenure  and  to  deal  with  interests  in  land 
according  to  the  Avill  and  pleasure  of  the  owner.^^  The  Stat- 
ute of  Uses  was  reactionary  -''^  in  purpose.  It  was  passed  to  stop 
the  rising  tide  against  the  burdens  of  tenure  and  the  feudal  sys- 
tem of  conveyancing.  But  the  operation  of  the  Statute  of  Uses 
was  not  only  not  permitted  to  prove  reactionary,  but  under 
the  favor  of  the  judges,  means  were  quickly  found  to  give  it 
an  operation  and  found  a  practice  upon  it  which  did  away  with 
the  inconvenience  of  livery  of  seizin  or  entry  upon  the  land, 
and  gave  land  owners  new  freedom  in  the  creation  of  legal 
springing  and  shifting  future  interests,  limited  by  the  only  rules 
of  public  policy  which  had  any  application  to  the  new  non- 
feudal  order  of  society — the  rules  of  public  policy  embodied 
in  the  Rule  against  Perpetuities  and  the  prohibition  of  gifts 
over  by  way  of  forfeiture  on  alienation. 

The  modern  wave  of  reform  in  real  property  law  in  England 
has  accomplished  among  other  things,  the  further  simplicity 
in  the  form  of  conveyances,^^  the  decreased  cost  of  transfer  2» 

iels,   23   Vt.    600;    Ferguson   v.  Ma-  Observe,  however,   Sugden   on   Pow- 

son,    60    Wis.    377;    Kuuku    v.    Ka-  ers,  8th  ed.  8. 

wainui,   4   Hawaiian   .'jlS.  28  Pollock  on  Land  Laws,  165171. 

20  Sugden  on  Powers,  8th  ed.  3.  20  id.  171-178. 

27  Pollock  on  Land  Laws,  102-104. 

530 


ClI.    XVlllJ       SPRINGING    AND   SHIFTING    INTERESTS  [§460 

and  the  abolition  of  particular  .survivals  of  the  feudal  law  which 
operated  to  defeat  the  expressed  intention  of  testators  and  set- 
tlors. All  of  these  currents  of  reform  have  been  felt  in  Illi- 
nois. Sec.  1  of  our  Act  concerning  Conveyances  and  the  statu- 
tory forms  have  simplified  our  modes  of  conveyance.  The  reg- 
istry system,  and  recently  the  enactment  of  the  Torrens  law 
for  the  registration  of  land  titles/'"  are  eft'orts  toward  decreasing 
the  cost  of  land  transfers.^'! 

The  whole  progress,  then,  has  been  from  the  restrictions  of 
feudalism  to  the  freedom  demanded  by  inod<'rn  commercialism. 
The  evolution  has  been  from  a  system  in  which  it  was  neces- 
sary to  frustrate  the  will  of  the  land  owner,  to  one,  the  whole 
object  of  which  is  to  carry  it  out.^- 

§460.  The  attitude  of  our  Supreme  Court:  How,  then, 
must  a  doctrine,  which  easts  doubt  upon  the  validity  of  spring- 
ing and  shifting  interests  created  by  deeds  operating  as  bar- 
gains and  sales  or  as  covenants  to  stand  seized  under  the  Stat- 
ute of  Uses,  be  regarded?  It  would  be  entirely  consistent  with 
a  condition  of  things  which  flourished  in  the  time  of  Henry  11 
and  Edward  I,  which  was  becoming  obsolete  in  the  time  of 
Henry  VIII  and  was  buried,  as  long  since  dead,  by  legislative 
enactment  in  the  time  of  Charles  II. 3=*  It  would  be  opposed 
to  that  fundamental  endeavor  of  modern  times  to  give  elt'ect 
to  the  expressed  intention  of  the  land  owner  whenever  possible 
— an  endeavor  which  was  accomplished  by  the  chancery  before 
the  Statute  of  Uses  and  under  the  very  fist  of  feudalism,  which 
not  only  survived  the  blow  aimed  at  it  by  the  Statute  of  Uses, 
but,  by  the  astuteness  of  the  judges,  turned  that  statute  to  its 
permanent  advancement,  and  has  continued  to  hold  the  ad- 
vantage then  gained  as  one  of  the  heritages  of  freedom. 

31' Laws  1897,  p.  141.  written    contract,    and    it    is    based 

31  ' '  But  as  commerce  and  trade  upon  a  sufficient  consideration,  and 
advanced,  and  the  necessities  of  no  rule  of  public  policy  has  been 
the  people  changed,  most,  if  not  all  contravened,  such  agreement  should 
of  the  rigid  rules  of  the  feudal  sys-  be  enforced,  unless  some  stern  and 
tem  have  entirely  disappeared."  inflexible  rule  of  law  prevents." 
Shackelton  v.  Sebree,  86  111.  616,  Shackelton  v.  Sebree,  86  111.  616, 
620.  621. 

32  "Where  parties  have  clearly  33  12  Car.  II  (1660),  ch.  24;  1 
expressed    their    intention    by    their  Gray's  Cases  on  Prop.,  2nd  cd.  327. 

531 


jj  461]  FUTURE    INTERESTS  '       [Ch.    XVIII 

§  461.     The  weight  of  authority  in  this  state  is  in  favor  of 
the  validity  of  shifting  interests  by  deed:     It  is  impossible 
for  the  writer  to  believe  that,  under  the  cases  as  they  stand,  it 
ever  was  the  law  of  this  state  that  shifting  future  interests 
by  deed  were  void.    We  have  only  one  case,^^  actually  holding 
the  ordinary  shifting  interest  by  deed  void,  and  two  cases  hold- 
ing gifts  to  classes  by  deed  inoperative  to  transfer  any  title  to 
the  additional  members  of  the  class.^^    Everj-thing  else  is  dicta, 
being  wholly  obiter,^^  or  else  consisting  of  expressions  in  cases 
where  the  gifts  over  are  void  on  settled  principles,  because  to 
take  effect  on  the  intestacy  of  the  first  taker,»'   or  by  way  of 
forfeiture  on  alienation  by  will.^^     Furthermore,   these  dicta 
are,  in  a  way,  perfectly  explainable  as  the  statement  of  the 
feudal  rule  of  remainders  which  is  to  be  found  in  all  the  books 
and  which,  as  a  common  law  rule  of  remainders,  is  still,  aca- 
demically speaking,  the  law.     These  dicta,  then,  are  not  mis- 
statements.    They  simply  fail  to  observe  the  later  history  of 
the  creation  of  future  interests  under  the  Statute  of  Uses.     In 
consequence,  they  do  not  tell  the  whole  story.    Palmer  v.  Cook,^^ 
the  one  case  holding  an  ordinary  shifting  interest  by  deed  void, 
was  decided  at  exactly  the  time  when  our  Supreme  Court  had 
just  held  similar  shifting  interests  by  devise  void  in  two  cases.^" 
It  was  decided,  then,  at  a  time  when  a  real  misconception  had 
gained  momentary  lodgment  in  the  court.    Almost  immediately, 
however,  the  cases  holding  shifting  executory  devises  void  were 
overruled,^^  and  it  is  submitted  that  if  the  validity  of  shifting 
interests  by  deed  came  up  today  and  the  question  fully  consid- 
ered. Palmer  v.  Cook  could  not  stand.     In  the  two  cases  involv- 
ing gifts  by  deed  to  a  class  the  court  does  not  seem  to  have  in 
the  least  perceived  the  real  scope  of  its  decision.'^^    On  the  other 
side  we  have  the  actual  result  of  at  least  two  lines  of  cases  ^"^ 
which  cannot  be  sustained  without  recognizing  the  validity  of 
shifting  interests  by  deed.     We  have,  also,  the  assurance  from 
Abbott  V.  Abbott  '^■^  that,  whenever  the  effect  of  the  Statute  of 

■54  Palmer  v.  Cook,  l.^g  111.  300.  4o  Ewing   v.  Barnes,   156  111.    61; 

^5  Morris   v.    Caudle,    178    111.    9;  Silva    v.    Hopkinson,    158    111.    386. 

Miller  v.  McAlister,  197  111.   72.  4i  Glover  v.  Condell,  163  111.  566; 

••'«  Ante,  §  445,  notes  24,  27,  28.  post,   §  467,  470. 

nvKron  v.  Kron,  195  111.  181.  ^"^Post,  §476. 

38  Stewart  v.  Stewart,  186  111.  60.  «  Ante,  §  444,  notes  14,  20. 

39  159  m.  300.  44  189  111.  482,  498. 

.532 


Ch.    XVllIJ       Sl'RINOING    AND   SlIIt^'lNO    INTERESTS  [§462 

Uses  to  support  the  future  interest  is  clearly  pointed  out  to  the 
court,  it  will  recognize  the  soundness  of  that  position. 

§  462.  Trend  of  the  Illinois  authorities  since  the  foregoing 
argiunent  appeared:  The  foregoing  >$§  44:3-461  have  been  re- 
printed substantially  as  they  appeared  in  the  author's  Future 
Interests,  published  in  1905.  Since  then  our  Supreme  Court 
has  made  progress  toward  a  definite  holding  that  shifting  in- 
terests by  deed  are  valid — that  is,  that  a  fee  on  a  fee  by  deed 
may  be  created. 

The  court  has  only  once  said,-*^  and  then  as  the  most  casual 
diction,  that  a  fee  on  a  fee  "in  a  conveyance  is  void."  On  two 
occasions  the  court  has  made  statements  by  way  of  dicta  merely, 
which  indicated  that  it  was  referring  to  the  feudal  or  common 
law  of  land  or  to  the  law  of  remainders  as  distinguished  from 
the  law  of  future  uses.  In  one  case  Mr.  Justice  Cartwright 
said:"^*^  "A  remainder  cannot  be  limited  to  take  effect  after  a 
fee  simple  for  the  reason  that,  a  fee  being  the  entire  estate, 
there  can  be  no  remainder  after  it  to  be  disposed  of."  Mr. 
Justice  Dunn  in  another  case  said :  ^'  "A  fee  cannot  be  lim- 
ited upon  a  fee  in  a  deed  at  common  law."  In  Cover  v.  James  ^^ 
where  the  limitations  were  by  deed  to  A  and  in  case  of  his 
death  to  B  in  fee,  the  court  seems  to  have  been  anxious  to  con- 
strue A's  interest  as  a  life  estate  so  as  to  avoid  the  difficulty 
which  might  arise  if  B's  interest  were  a  fee  on  a  fee  bj^  deed. 
The  same  is  true  of  Bauman  v.  Stoller,'^^  where  the  limitations 
w'ere  in  substance  to  A,  and  if  A  died  before  his  wife  leaving 
children  surviving  him,  to  the  wife  and  surviving  children. 

In  Broivn  v.  Brown/'^  however,  the  limitations  created  by 
deed  were  to  Catherine  in  fee  with  a  shifting  interest  to,  Cora 
when  she  reached  eighteen  for  her  life,  and  then  to  Cora's  chil- 
dren for  life.  After  the  death  of  Cora  and  her  children  Cath- 
erine and  those  taking  under  her  claimed  to  be  entitled  in  fee. 
It  was  held  that  they  were  so  entitled;  that  if  the  life  estate 
w^ere  valid  Catherine's  fee  was  only  cut  down  to  the  extent  of 
that  life  estate.     The  validity  of  the  shifting  interest  for  life 

*'o  Johnson  v.  Buck,  220  111.  226,  ^  217  111.  309. 

235.  •*'-•  235  111.  480. 

46  Morton  r.   Babb,  251    111.   488,  --o  247  111.  52S. 

492. 

4TPitzer  V.  Morrison,  272  111.  291, 
293. 

538 


§  462]  FUTURE    INTERESTS  L^^^-    XVIli 

was  not  actually  involved  but  its  validity  was  assumed  and  the 
case  decided  upon  that  assumption  rather  than  on  the  assump- 
tion that  the  life  estate  upon  the  fee  was  void..  In  principle  there 
is  uo  difference  between  a  life  estate  after  a  fee  and  a  fee  on  a 
fee.     If  the  former  is  valid  so  is  the  latter. 

In  Morton,  v.  Bahb  "'^  the  limitations  by  deed  were  to  A  in 
fee,  but  if  A  died  without  leaving  issue,  to  the  grantor.  The 
gift  to  the  grantor  was  a  fee  on  a  fee  by  deed.  It  was  held 
valid.  This  was  placed  upon  the  ground  that  a  determinable 
fee  in  the  feudal  or  common  law  sense  might  be  created  with 
a  possibility  of  reverter  in  the  creator  of  the  base  fee  and  that 
that  was  what  had  been  done.  The  court  said  :  ' '  The  rule  that 
a  fee  cannot  be  mounted  upon  a  fee  by  deed  does  not  mean  that 
it' is  impossible  to  grant  an  estate  less  than  a  fee  simple  [a  base 
or  determinable  fee]  by  deed."  Thus  we  observe  that  the  court 
preferred  to  resort  to  the  difificult  doctrine  that  determinable 
fees  in  the  feudal  or  common  law  sense  might  still  be  created 
rather  than  to  rest  its  decision  on  the  clear  ground  that  a  fee 
could  be  mounted  upon  a  fee  by  way  of  use  and  that  the  deed 
in  question  operated  as  a  bargain  and  sale  and  therefore  by 
way  of  use. 

The  decision  in  Bauman  v.  Stoller  ^-  seemed  to  rest  upon  the 
ground  that  the  limitations  were  to  A  for  life  and  if  he  died 
before  his  wife  and  left  children  surviving,  to  such  children 
and  his  wife.  If  such  were  the  interests  created  it  was  pointed 
out  that  the  contingent  remainders  had  been  destroyed  by  the 
merger  of  the  life  estate  in  the  reversion,  due  to  certain  con- 
veyances which  had  been  made.^=^  This  point  was  urged  when 
the  case  came  up  to  the  Supreme  Court  a  second  time  under  the 
title  of  Stoller  v.  Doyle.^'^  The  only  way  of  avoiding  the  defeat 
of  the  interests  of  the  children  was  to  hold  that  the  first  taker 
had  a  fee  and  that  the  shifting  limitation  to  the  children  was 
valid  and  indestructible.  This  was  done  and  the  court  recog- 
nized that  a  fee  on  a  fee  could  take  effect  as  a  future  use  under 
the  Statute  of  Uses.  Here,  therefore,  we  have  a  direct  decision 
that  a  fee  can  be  mounted  upon  a  fee  by  deed.^^ 

01251   111.   488,   493;    7  111.    Law           54  257   111.    369;    8   111.   Law  Rev. 

Rev.  130.  495. 

52  235  111.  480.  s5  In  Duffield  v.  Duffield,  268  111. 

53  3  111.  Law  Rev.  383.  29,    the    court   said:     "The    power 

534 


CH.    XVIII]       SPRINGING    AND  SHIFTING   INTERESTS 


[§463 


In  Boberts  v.  Da^ey  ''^  the  deed  convened  and  warranted  the 
title  to  Amanda,  with  the  proviso  "if  said  grantee  herein  die 
before  attaining  the  age  of  twenty-one  years"  over  to  Mary  and 
Martha.  Amanda  died  under  twenty-one  and  it  was  held  that 
the  gift  over  took  effect  as  a  conditional  limitation.     Thus  the 

ERRATUM 

Kales  Estates,  Future  Interests- Page  .S35 

Read  second  line  of  Sec.  JfOo  as: 
"valid:  Conveyances  by  deed  to  a  person  in  esse 
expressed  to" 

§  463.  Conveyances  to  take  effect  at  the  grantor's  death 
two  theories:  Our  Supreme  Court  has  fully  recognized  that 
take  effect  at  the  grantor's  death,  but  not  in  terms  reserving  to 
tJie  grantor  a  life  estate,  have  f reciuently,  in  this  state,  been  held 
to  create  a  valid  future  interest,^^ 


to  limit  a  future  estate  has  been 
recognized,"  citing  Abbott  v.  Ab- 
bott, 189  III.  488  and  Stoller  v. 
Doyle,  257  111.  369. 

If  the  conveyancer  must  create 
legal  future  shifting  interests  \>j 
deed  the  safest  way  to  proceed 
would,  it  is  conceived,  be  as  fol- 
lows: Let  the  deed  in  the  statu- 
tory form  or  valid  under  sec.  1 
of  the  Act  on  Conveyances  run  to 
some  indifferent  person  "for  the 
use  of  the  (real  grantee)  and  his 
heirs,  but  if  the  said  (real  gran- 
tee) die  without  leaving  issue  him 
surviving,  then  to  the  use  of  B  and 
his  heirs."  See  H.  Clay  Horner's 
article  entitled  "The  Statute  of 
Uses,"  in  Chicago  Legal  News  for 
July  12,  1902,  p.  375. 

This  is  simply  a  shifting  use, 
raised  on  transmutation  of  posses- 
sion, as  distinguished  from  such  a 
use  raised  by  bargain  and  sale  or 
covenant  to  stand  seized,  without 
any  transmutation  of  possession. 
On  principle, and  authority,  a  shift- 


ing use  may  arise  as  well  in  one 
of  these  ways  as  another.  It  is 
conceived,  however,  that  to  a  court 
unfamiliar  with  assurances,  under 
the  Statute  of  Uses,  the  form  sug- 
gested would  present  the  case  in 
favor  of  the  future  shifting  inter- 
est as  a  more  elementary  problem. 

56  284  111.  241. 

57  Shackelton  v.  Sebree,  86  111. 
616;  Harshbarger  v.  Carroll,  163  111. 
636;  Latimer  v.  Latimer,  174  111. 
418;  Noble  v.  Fickcs,  230  111.  594; 
White  V.  Willard,  232  111.  464,  472; 
Hathaway  v.  Cook,  258  111.  92,  96; 
Nowakowski  v.  Sobeziak,  270  111. 
622;  Vinson  v.  Vinson,  4  111.  App. 
138;  Calef  v.  Parsons,  48  111.  App. 
253,  257,  semble. 

In  Conkling  v.  City  of  Spring- 
field, 39  111.  98,  and  Thomas  v.  Eck- 
ard,  88  111.  593,  the  conveyance  was 
conditioned  not  to  take  effect  till 
a  certain  condition  precedent  had 
been  performed.  In  both  cases  it 
was  held  that  the  condition  had  not 
been  fulfilled  and  so  the  title  never 


535 


§  464]  FUTURE    INTERESTS    .  [Ch.    XVIII 

J;  464.  The  future  interest,  void  at  common  law,  sustained  on 
two  theories:  Our  Supreme  Court  has  fully  recognized  that 
a  future  interest  limited  to  take  effect  at  the  grantor's  death 
was  void  at  common  law.-"'**  This,  however,  is  only  an  academic 
conclusion,  for  at  common  law  the  conveyance  would  ordinarily 
have  been  by  livery  of  seizin  and  that,  with  other  common  law 
forms  appropriate  for  transfer  by  one  having  a  freehold  inter- 
est in  possession,  probably  never  were  used  here,  or,  if  they 
were,  have  long  since  become  unnecessary  and  obsolete/"^^ 

The  principal  ground  for  sustaining  such  a  future  interest,  as 
set  out  in  the  leading  case  of  Shackclton  v.  Hehree,^'*^  is,  that,  by 
the  operation  of  the  conveyance,  the  grantor  becomes  seized  of 
a  life  estate  and  the  future  interest  then  takes  effect  as  a  re- 
mainder.*'^  The  power  of  the  grantor  to  convey  to  himself  a 
life  estate  might  have  been  rested  upon  the  fact  that  the  deed 
operated  as  a  bargain  and  sale  or  a  covenant  to  stand  seized 
under  the  Statute  of  Uses.^-  As  such  it  is  read  as  if  the  grantor 
was  expressed  to  stand  seized  for  the  use  of  himself  for  life  and 
then  to  the  use  of  the  grantee  in  fee.  The  statute  executes  the 
uses  and  the  grantor  becomes  seized  of  a  life  estate  and  the 
grantee  of  the  remainder  in  fee.^-"'  In  fact,  however,  the  court 
held  that  the  deed  was  effective  to  carry  out  the  grantor's  in- 
tention by  virtue  of  sec.  1  of  the  Act  on  Conveyances.'^*  They 
agi'eed  that  the  inability  of  the  feoffor  upon  making  a  trans- 
took  effect.  The  validity  of  the  esGilberton  Uses  (Sugden's  ed.), 
springing  interest  was,  therefore,  150-152  note,  quoted  in  1  Gray's 
not  involved.                                                Cases    on   Prop.,    2nd    ed.    403-404; 

58  Latimer  v.  Latimer,  174  111.  Sugden  on  Powers,  8th  ed.  2526; 
418,  429,  430;  Shackelton  v.  Se-  Challis  on  Real  Property,  2nd  ed. 
bree,  86  111.  616;  Vinson  v.  Vinson,  384,  note;  see  also  opening  para- 
4  111.  App.  138,  140;  Calef  v.  Par-  graph  in  the  opinion  of  Lyon,  J., 
sons,  48  111.  App.  253,  257.  in  Ferguson  v.  Mason,  60  Wis.  377; 

59  Shackelton  v.  Sebree,  86  111.  also  2  Hayes  on  Conveyancing,  5th 
616,  621.  See  also  cases  cited  ante,  ed.  90.  The  dictum  of  Callard  v. 
§453.  Callard,  Moore,  687  (1  Gray's  Cases 

60  86  111.  616.  on   Prop.,   2nd   ed.   386),   contra,   is 

61  This  is  the  only  ground  relied       not  sound. 

upon  in  Harshbarger  v.  Carroll,  163  6*  R.  L.  1827,  page  95,  sec.  1 ;  R. 

111.    636,   and    Latimer   v.    Latimer,  S.  1845,  chapter  24,  sec.  1  (p.  102) ; 

174  111  ilS.  R.  S.  1874,  chapter  30,  sec  1;  1  A. 

e2Ante,  §456.  &  D.  R.'E.  S.,  pp.  75,  100. 

536 


Ch.    XVIII]       SPRINGING    AND  SHIFTING    INTERESTS  [§465 

fer,  to  reserve  to  liiniself  a  life  estate,"'^  arose  from  the  char- 
acter and  formalities  of  tlie  eonveyanee  by  livery  of  sei/iii,  whieli 
required  an  actual  change  of  possession.'-"  When,  therefore,  tiie 
deed  took  effect  under  the  statute,  by  the  force  of  which  an  in- 
strument signed  and  sealed  without  livery  of  seizin  was  all  that 
was  necessary  to  convey  title  to  real  estate,  there  was  no  obstacle 
to  the  intent  of  the  grantor  being  carried  out."''^ 

The  future  interest  might  have  been  sustained  as  a  springing 
estate,  that  is,  a  future  interest  cutting  short  a  resulting  rever- 
sion in  fee  in  the  grantor.  The  deed  might  with  propriety  be 
regarded  as  operative  under  the  Statute  of  Uses  as  a  covenant 
to  stand  seized  or  as  a  bargain  and  sale.'-^  So  construed  it  would 
be  entirely  capable  of  creating  a  springing  future  interest.  This 
view  was  convincingly  maintained  by  Mr.  .Ju.stice  leaker  in  the 
Appellate  Court  in  Vinson  v.  Vinson."^''  It  was  somewhat 
vaguely  suggested  in  Shackelton  v.  SehreeJ''  The  future  spring- 
ing interest  might  as  well  have  been  regarded  as  validly  created 
on  the  ground  that  the  deed  operated  under  sec.  1  of  the  Act 
on  Conveyances.  This  would  be  the  logical  result  of  the  reason- 
ing used  by  the  court  to  justify  the  grantor's  right  to  limit  a 
life  estate  to  himself.  If  that  can  be  done  because  our  statute 
provides  a  mode  of  transfer  free  from  the  feudal  requirements 
of  livery  of  seizin,  then,  equally,  may  a  springing  future  inter- 
est which  was  prohibited  only  by  the  requirements  of  feudal 
conveyancing  and  policy,  be  created  by  a  deed  in  the  ordinary 
form  operating  under  it."^ 

§  465.  Which  of  these  two  views  is  correct?  Does  the 
grantor  have  a  life  estate  (whether  under  the  Statute  of  Uses 
or  by  sec.  1  of  the  Act  on  Conveyances  is  immaterial),  with  a 
remainder  in  fee  to  the  grantee,  or  does  the  grantor  have  a  fee 
resulting  to  him  by  operation  of  law  with  a  springing  interest 
in  the  grantee  cutting  it  .short? 

cr.  Callard  r.  Callanl,  Mooro,  G87.  «9  4  111.   App.   l.'iS.     See  also  for 

aoAnte,  8  451.  the    same    view:    Leake,    Digest    of 

<-.- Shackelton    v.    Sebree,    86    111.  Land  Law,  112,  113;    Roc  v.  Tran- 

616;  White  v.  Willard,  232  111.  464,  mer,    2    Wils.    75;    1    Gray's    Cases 

472;  Vinson  v.  Vinson,  4  111.  App.  on  Prop.,  2nd  ed.  391. 

138.     See  also  to  the  same  effect:  "'^86  111.  616. 

Kuuku    V.    Kawainui,    4    Hawaiian  ti  Vinson    r.    Vinson,    4    111.    App. 

515;  Gorham  v.  Daniels,  23  Vt.  600.  138. 
C'f^Anfe,  §  456. 

537 


§  465]  FUTURE    INTERESTS  [Ch.    XVIII 

In  a  number  of  cases  a  different  result  may  be  reached  ac- 
cording as  one  or  the  other  of  these  two  lines  of  reasoning  be 
accepted.  Thus,  in  case  the  grantor  retains  only  a  life  estate, 
the  woman  becoming  his  wife,  subsequent  to  the  conveyance, 
will  have  no  dower.  If,  however,  he  has  a  fee,  even  though  it 
be  subject  to  be  defeated,  she  will  have  dower  out  of  it  after  the 
grantor's  death  under  the  application  of  the  rule  of  Buckworth 
V.  ThirkellJ'^  So,  if  the  grantor  have  a  life  estate,  the  remain- 
derman may  have  an  action  of  waste.  If  the  grantor  have  a  fee 
resulting  to  him  by  operation  of  law,  it  seems  probable  that  any 
remedy  to  prevent  legal  waste  may  be  denied  liim.'^^  Again, 
if  A  stood  seized  to  the  use  of  his  heirs  after  his  death,  then,  if 
there  be  a  resulting  use  to  A  in  fee  in  his  lifetime,  the  Bwle  in ' 
Shelley's  Case  '^'^  would  not  apply,  and  there  would  be  a  valid 
springing  interest  in  the  heirs  of  A.  If,  on  the  other  hand,  A 
took  an  estate  for  life  by  implication,  the  Rule  in  Shelley's  Case 
would  apply,  and  A  would  have  a  fee  simple— his  standing  seized 
being  thus  entirely  nugatory."^^ 

It  is  believed  that  the  view  which  supports  the  future  in- 
terest as  a  remainder  after  a  life  estate  where  there  is  no  ex- 
pressed reservation  to  the  grantor  of  a  life  estate,^''  cannot  be 

72  1  Coll.  Juris.  322 ;  3  Bos.  &  Pul.  no  application  where  the  executory 

652,    note,   Butler's    Co.    Lit.    241a,  interest  was  to  take  effect  with  ab- 

note ;    Gray 's   Cases   on   Prop.,    2nd  solute  certainty  after  the  grantor 's 

ed.  588;   1   Scribner  on  Dower,  2nd  death. 

ed.  302,  10  Am.  &  Eng.  Enc,  2nd  73  Abbott  v.  Holway,  72  Me.  298 ; 
ed.  161,  which  held  that  the  execu-  Gannon  v.  Peterson,  193  111.  372; 
tory  devisee  does  not  take  free  from  Turner  v.  Wright,  2  De  G.  F.  &  J. 
dower  of  the  first  taker's  wife,  in  234;  1  Ames'  Cases  on  Equity  Jur- 
the  absolute  interest  which  the  first  isdiction,  476. 
taker  may  have  had.  Post,  §484.  '^'^  Ante,  §§412  et  seq. 
Observe,  however,  that  the  executory  75  Fearne,  Cont.  Kem.,  41,  42. 
devise  over  in  this  case  was  7o  of  course,  where  there  is  an 
upon  the  contingency  that  the  first  express  reservation  of  the  life  es- 
taker  died  without  issue  him  sur-  tate  in  the  grantor  it  is  perfectly 
viving  and  the  decision  is  sup-  proper  to  sustain  the  future  inter- 
ported  upon  the  ground  that  the  est  as  a  remainder:  Fowler  v. 
children  of  the  marriage,  if  there  Black,  136  111.  363;  Palmer  v.  Cook, 
had  been  any,  would  have  taken.  159  111.  300;  Bowler  v.  Bowler,  176 
If  the  extent  of  the  case  be  limited  111.  541;  Valter  v.  Blavka,  195  111. 
by  this  reasoning,  then  the  rule  of  610;  Calef  v.  Parsons,  48  111.  App. 
Buckworth    v.    Thirkell    would    have  253. 

538 


Cir.  XVITll        SPRINGING    AND   SHIFTING    INTERESTS  [§466 

sustained."  There  can  be  no  resulting  estate  for  life,  since 
resulting  estates  by  operation  of  law  are  always  in  iee.'^^  Nor 
is  it  possible,  when  one  observes  how  strong  a  necessity  must 
exist  before  a  life  estate  will  be  implied,"'-'  to  imagine  upon 
what  ground  there  can  be  any  implication  of  a  life  estate  in  the 
grantor.  No  doubt,  there  was  a  time  when  the  English  courts 
were  willing  to  imply  a  life  estate  in  such  a  case  as  the  one  under 
discussion.80  That,  however,  was  before  the  general  principles 
upon  which  life  estates  are  regularly  implied,  had  been  fully 
developed,  and  when,  under  the  influence  of  a  rule  which  found 
expression  in  Adams  r.  Savage,^^  it  was  thought  that  a  con- 
tingent future  use,  unsupported  by  a  freehold,  was  bad  because 
of  the  application  of  the  common  law  or  feudal  rule,  that  there 
must  be  a  freehold  to  support  the  future  interest.  Under  these 
circumstances  the  English  judges  seem  to  have  been  quick  to 
imply  a  life  estate  limited  to  the  covenantor  himself.^^  Adams 
V.  Savage,  however,  is  unsound  on  principle  and  should  not  be 
regarded  as  law  in  a  jurisdiction  where  it  has  not  already  been 
adopted.83  There  would  appear,  therefore,  to  be  no  ground  to 
day  for  implying  any  life  estate. 

§466.  Conclusion:  It  would  seem  best  to  sustain  a  limita- 
tion after  the  grantor's  death,  when  no  life  estate  is  expressly 
reserved,^*  as  a  springing  interest,  cutting  short  a  resulting 
estate  in  fee  in  the  grantor,  and  valid  either  under  the  Statute 
of  Uses  or  under  sec.  1  of  the  Act  on  Conveyances.  If  a  life 
estate  be  expressly  reserved  to  the  grantor,^'  a  legal  limitation 

77  Abbott  V.  Holway,  72  Me.  298.  «' 2  Ld.  Raym.   854;   2  Salk,  601, 

78  2   Hayes   on  Conveyancing,  5th       679   (170.3).     Anie.  §80. 

ed.  464,  465;  Leake,  Digest  of  Land  s^  Sugdon  on   Powers,  8th  ed.  36, 

Law,  112,  113.  ^''^-                                   .         „        ,  . 

,„  -     T                      ,„-n       pfi  „i            "•''Gray's   Rule    against   Perpetui- 

79 1    Jarinan    on    Wills,    0th  eu.                      ■'                                .        .       , 

XT,.     ,      s    ox                    Ano      *  ties,   §§58-60;   "On   a  point  in  the 

(Bigelow)    Star   pages    498    ct  seq.       ^     '     I  ^       '          r  •    •:  *•        >>  v„ 

ooL.     .  Law  of  Executory  Limitations,"  by 

Ante,  §§  204  et  seq.  ^^^^^^.^^  ^  ^^^  ^^^^^^   ^^^,  4^2 .  g^g. 

soPibus  r.  Mitford.  1  Vent.  372;  ^^^  ^^   p^^.^^^^   ^^^   ^j    ^.    ^^  ^^^ 

Fearne,   C.   R.,   42;    Elphinstone   on  j^^f^^  §80. 

Interpretation    of   Deeds,   288;    and  84  Shackelton    v.    Sebroe,    86    111. 

even  so  careful  a  modern  writer  as  g-jg.    Harshbarger    r.    Carroll,    163 

Challis   in   an   article   entitled   "On  j\]     gsg.    Latimer   v.    Latimer,    174 

a  Point   in   the  Law  of   Executory  m.    418;    Vinson    v.   Vinson,   4   111. 

Limitations,"    1    Law    Quart.    Rev.  App.  138. 
412    414.  85  Fowler   v.  Black,   136  III.   363; 

539 


§  467]  FUTURE    INTERESTS  [Cn.    XVllI 

for  life  to  the  grantor,  with  a  valid  remainder  in  fee  to  the 
grantee,  may  be  sustained  under  the  Statute  of  Uses  or  sec.  1 
of  the  Act  on  Conveyances. 

TITLE  II. 
BY  WILL— EXECUTORY  DEVISES. 

§  467.  Executory  devises  in  general  vaJid — The  authorities : 
It  is  not  believed  that  there  is  now,  or  that  there  ever  has  been, 
any  serious  question  in  this  state  concerning  the  validity  in 
general  of  springing  and  shifting  future  interests  in  real  and 
personal  property  created  by  will.  That  our  supreme  court 
should,  in  the  face  of  the  establishment  of  such  executory  limi- 
tations under  the  Statute  of  Wills  of  Hen.  VIII,^"  and  their 
continued  use  in  England  for  three  centuries  and  a  half  and 
in  this  country  since  its  settlement,  have,  in  blind  ignorance, 
judicially  legislated  the  executory  devise  out  of  existence  is  so 
monstrous  and  absurd  a  conclusion,  that  it  cannot  be  seriously 
suggested.^^  Furthermore,  a  thorough  examination  of  all  the 
authorities  in  this  state  which  touch  the  subject  will  find  the 
validity  of  executory  devises  in  general  unimpeached. 

In  several  instances  ^^  wills  have  been  before  the  Supreme 
Court  containing  a  springing  executory  limitation,  and,  while 
in  none  was  the  main  pressure  brought  to  bear  to  impeach  the 
validity  of  this  interest,  yet  in  not  one  was  it  suggested  that 
the  future  limitation  was  invalid.  In  fact,  the  contrary  seems 
to  have  been  assumed.  Instances  of  shifting  executory  limita- 
tions are  more  common.  In  a  considerable  number  of  cases  the 
validity  of  a  shifting  executory  devise  has  been  directly  in- 
volved and  sustained,^^  often  with  a  fullness  of  reasoning  which 

Palmer  v.  Cook,  159  111.  300;  Bow-  111.  660;  Jacobs  v.  Ditz,  260  111.  98; 

ler   V.    Bowler,   176    111.   541 ;    Calef  Kolb  v.  Landes,  277  111.  440,  446. 

V.  Parsons,  48  111.  App.  253.  For  some  observations  on  the  dis- 

80  Ante,  §  85.  position  of  the  intermediate  income, 

8"  For  a  view  of  the  modern  pol-  or  legal  title,  see  ante,  §§207-209. 

icy  of  the  law  which  is  at  the  bottom  »»  Ackless     v.     Seekright,     Breese 

of  the  validity  of  all  springing  and  (111.)   76;   Friedman  v.  Steiner,  107 

shifting    interests,    whether    created  111.  125;   Summers  v.  Smith,  127  111. 

by  deed  or  will,  see  ante,  §  459.  645;  Ducker  v.  Burnham,  146  111.  9; 

88  Lambert    v.    Harvey,     100    111.  Smith    v.    Kimbell,    153    111.    368; 

338;   Kingman  v.  Harmon,   131   111.  Strain  v.  Sweeny,  163  111.  603 ;  Kocf- 

171,   172;    Cassem   v.    Kennedy,   147  fler  v.  Koeffler,  185  111.  261;   Harri- 

540 


Ch.    XVIIIJ       SPRINGING    AND   .SHIFTING   INTERESTS 


[§467 


leaves  the  validity  of  executory  devises  in  general  beyond  ail 
doubt. 

Springing'-"'  and  shifting'*'   limitations  t)y  way  of  executory 


son  V.  Weatherby,  180  111.  418, 
semble;  Frail  v.  Carstairs,  187  111. 
310;  Gannon  v.  Peterson,  193  111. 
372;  Thompson  v.  Becker,  194  111. 
119,  122;  Becker  v.  Becker,  206  111. 
53;  Bradsby  v.  Wallace,  202  111. 
239;  Harris  v.  Fer^y,  207  111.  534; 
Orr  V.  Yates,  209  111.  222;  Johnson 
V.  Buck,  220  111.  226;  Ahlfield  v. 
Curtis,  229  111.  139;  Mayer  v.  Mc- 
Cracken,  245  111.  551 ;  Askins  v.  Mer- 
ritt,  254  111.  92;  Ashby  v.  McKin- 
lock,  271  111.  254;  Pitzer  v.  Mor- 
rison, 272  111.  291;  McClintock  v. 
Meehan,  273  111.  434;  Gawin  v.  Car- 
roll, 276  111.  478;  Aloe  i;.  Lowe,  278 
111.  233;  Blaekstone  v.  Althousc, 
278    111.    481;    Fitzgerald    v.    Daly, 

284  111.    42;    Fulwiler    v.    McCluu, 

285  111.  174;  Smith  v.  Carroll,  286 
111.  137;  Morris  v.  Phillips,  287  111. 
633. 

Observe  the  dicta  of  the  follow- 
ing cases  sustaining  the  general  va- 
lidity of  shifting  limitations  by  way 
of  executory  devise:  Siegwald  v. 
Siegwald,  37  111.  430;  Illinois  Land 
Co.  V.  Bonner,  75  111.  315.  In  Post 
r.  Rohrbach,  142  111.  600  the  gift 
over  was  void  because  it  was  too 
remote.  Apart  from  remoteness  it 
was  a  perfectly  valid  executory  de- 
vise. 

In  the  following  cases  the  valid- 
ity of  a  shifting  executory  limita- 
tion seems  to  have  been  assumed : 
Ridgeway  v.  Underwood,  67  111. 
419;  McFarland  v.  McFarland,  177 
111.  208;  McConnell  i-.  Stewart,  169 
111.  374;  Hinrichscn  r.  Hinrii'liscii, 
172  111.  462. 

90  (a)  Cases  where  the  exercise 
of  a  power  by  an  executor  cuts  short 
the  interest  which  has  descended  to 


an  heir  at  law:  (But  these  cases 
may  rest  upon  a  statute  in  force 
since  1829.  See  post,  §  610,  note 
5.)  Rankin  v.  Rankin,  36  111.  293; 
Purser  f.  Short,  58  111.  477;  Hughes 
V.  Washington,  72  111.  84;  Funk  v. 
Eggleston,  92  111.  515;  Starr  v. 
Moulton,  97  111.  525;  Lambert  v. 
Harvey,  100  111.  338,  semble. 

(b)  Cases  where  the  exercise  of 
a  power  by  a  life  tenant  cuts  short 
the  interest  which  has  descended  to 
the  testator's  heirs:  Fairman  v. 
Beal,  14  111.  244;  Christy  v.  Pul- 
liam,  17  111.  59;  19  111.  331;  Mar- 
killie  V.  Ragland,  77  111.  98;  Cro- 
zier  V.  Hoyt,  97  111.  2'.') ;  Lomax  v. 
Shinn,  162  111.  124. 

91  (a)  Cases  where  the  exercise  of 
a  power  by  an  executor  cuts  short 
the  interest  of  the  devisee  under 
the  will:  (But  these  cases  may  rest 
upon  a  statute  in  force  since  1829, 
see  post,  §610,  note  5.)  Pahl- 
man  v.  Smith,  23  111.  448;  Hamil- 
ton V.  Hamilton,  98  111.  254;  Rails- 
back  V.  Lovejoy,  116  111.  442,  semble; 
Ducker  i'.  Burnham,  146  111.  9, 
semble;  Hawkins  v.  Bohling,  168 
111.  214,  220,  semble;  Kirkpatrick  v. 
Kirk])atrick,  197  111.  144,  semble. 
Also  Oilman  v.  Boil,  99  111.  144, 
semble;  and  Ely  i'.  Dix,  118  111. 
477. 

(b)  Cases  where  the  exercise  of 
a  power  by  a  life  tenant  cuts  short 
the  interest  of  the  devisees  in  re- 
mainder: Kaufman  v.  Breckin- 
ridge, 117  111.  ;?05;  Walker  v.  Prit- 
chard,  121  111.  221;  Gaffeld  v. 
Plumber,  175  111.  521;  Goflf  v.  Pen- 
senhafor,  190  111.  200;  Kurtz  r. 
Graybill,  192  111.  445.  See  also  the 
ilicta  of  cases  where  the  power  was 


541 


^  468]  FUTURE    INTERESTS  [Ch.    XVIII 

dovise,  arisino:  by  the  exercise  of  a  power,  have  been  repeatedly 
upheld. 

§468.  Three  cases  contra^ — Andrews  v.  Andrews:'*-  In 
that  ease  the  testator  left  his  property,  after  certain  life  estates, 
to  charity,  devising  specifically  to  the  First  Presbyterian  Church 
of  Chester  upon  certain  charitable  trusts.  The  testator  then 
directed  the  manner  of  the  election  of  a  trustee  after  the  death 
of  the  life  tenants,  in  whom  the  title  should  vest.  On  a  bill  filed 
by  the  heirs  at  law  to  have  the  gift  to  charity  declared  void, 
it  was  urged  that  "the  testator  could  not  vest  a  fee  in  the  church 
and  by  the  same  instrument  divest  it  after  it  was  thus  vested, 
and  vest  it  in  another, ' '  Not  only  does  our  Supreme  Court  seem 
to  have  countenanced  this  proposition,  but  it  even  went  the 
length  of  adding:  "Nor  could  he  [the  testator]  limit  a  fee  upon 
a  fee,  unless  the  first  fee  limited  failed  for  the  want  of  the  hap- 
pening of  a  specified  contingency,  which  was  not  the  case  in  this 
devise."  This  discussion  was  doubtless  irrelevant  in  the  case, 
for  even  if  the  shifting  gift  to  the  new  trustee  had  been  void 
the  trust  would  not  necessarily  have  failed  for  that  reason. 
Even  if  revelant  it  was  answered  by  the  court's  holding  that 
by  statute  the  fee  w^as  in  the  church  corporation  so  that  the 
new  trustee  provided  for  by  the  will  could  only  have  a  right  ot 
management.  It  is  submitted  that,  so  far  as  the  testator  ex- 
pressed an  intent  that  upon  the  death  of  the  life  tenants  the  fee 
was  to  be  shifted  from  the  Presbyterian  Church  as  trustee  to 
a  new  trustee  selected  in  a  certain  way,  there  was  no  more  dif- 
ficulty, apart  from  the  statute  mentioned,  in  its  being  given 
effect,  than  in  the  common  case  where  provision  is  made  as  in 
a  deed  or  will  for  the  substitution  of  a  successor  in  trust.  The 
obiter  of  Andrews  v.  Andrews  must  then  remain  subject  to 
doubt. 

§  469.  Ewing  v.  Barnes  ^-  and  Silva  v.  Hopkinson :  ^^  In 
both  these  cases  there  was  a  devise  in  fee  to  the  first  taker, 
with  a  gift  over  upon  the  first  taker's  dying  without  issue.  In 
both  the  gift  over  was  held  invalid,  apparently  upon  the  ground 
that  a  fee  could  not  be  limited  upon  a  fee  by  will.  Soon  after 
these  cases  were  decided  they  were  subjected  to  a  very  acute 

licld  not  to  have  been   properly  ex-  »2  no  111.  223. 

ercised:    GriflSn   v.    Griffin,    141    111.  ^  156  111.  61. 

;J73;   Clark  v.  Clark,  172  111.  355.  9*158  111.  386. 

542 


Ch.    XVI II j       SPRINGING    AND   Snil-TING    INTERESTS  [§  469 

scrutiny  by  a  learned  member  of  tlie  Ciiicaf^o  bar,""^  who  at- 
tempted, not  it  must  be  admitted,  without  a  full  realization  of 
the  difficulties  of  so  doing,  to  point  out  that  the  actual  decision 
in  each  case  might  be  sustained.  It  was  suggested  that  in  the 
first  case  the  gift  over  was  to  take  effect  upon  an  indefinite  fail- 
ure of  issue  and  was,  therefore,  too  remote.  It  might  be  ob- 
jected to  this  explanation  that  a  devise  of  real  estate  was  in- 
volved and  that  by  a  very  ancient  rule  of  construction,"''  the 
first  taker  would  have  an  estate  tail,  with  a  vested  remainder  in 
fee  to  the  ultimate  devisee,  which  could  not  be  too  remote."^ 
By  our  statute,*-***  however,  the  estate  tail  would  be  turned  into 
a  life  estate  to  the  first  taker,  with  a  contingent  remainder  in 
fee  to  children  still  unborn,  so  that  the  ultimate  gift  would 
be  a  contingent  remainder  and  not  void  for  remoteness  be- 
cause of  the  rule  of  destructibility  of  contingent  remainders.'*^* 
In  regard  to  Silva  v.  Hophinson,  it  was  observed  that,  while  the 
gift  over  must  have  been  regarded  as  taking  effect  upon  a  definite 
failure  of  issue,  yet  there  was  some  ground  for  saying  that  the 
executory  devise  over  only  took  effect  upon  the  death  of  the 
first  taker  without  ever  having  had  issue.  The  difficulty  here 
is  that  it  did  not  appear  from  the  bill  filed  that  any  children 
had  ever  been  born  to  the  two  devisees  who  took  a  fee  simple 
subject  to  the  attempted  gift  over."^  The  present  writer  would 
suggest  that,  if  both  cases  are  to  be  supported  in  any  event,  it 
must  be  upon  the  ground  that  there  was  no  gift  over  at  all,  but 
that  the  death  of  the  first  taker,  without  issue,  or  without  leav- 
ing issue  him  surviving,  meant  the  death  of  the  first  taker 
in  the  lifetime  of  the  testator  without  issue.  This  is  a  very 
forced,  if  not  unjustifiable,  construction  ^  in  both  cases.^ 

-  95  Mr.    Lessing    Rosenthal    in    28  Court     with    the     executory     devise 

Chicago  Legal  News,  257   (April  4,  that,  upon  several  occasions,  it  has 

1896).  strained   to    construe   limitations    as 

98  Post,  §  549.  a  life  estate  with  contingent  reniain- 
97  Gray 's    Rule   against    Perpetui-  ders  in  double  aspect  rather  than  as 

ties,  §  443  et  seq.  a    vested    remainder    in    fee    simple 

^^  Ante,  §§402  et  seq.  after  the  life  estate  and  an  execu- 

98a  Post,  §  550.  tory  devise  over.     In  each  case,  this 

99  See    28    Chicago    Legal  News,       course  seems  to  have  proceeded  upon 
260.  the    assumption    that    in    no    other 

1  Post,  §§  531,  539.  way   could   the   future   interests   be 

2  It    is    signitieant    of    a    certain       given    effect:      Furnish     r.    Rogers, 
lack    of    facility    in    our     Supreme       154  111.  569,  ante,  S349;   Fhayer  v. 

543 


§  470]  PlTliRE    INTERESTS  [Ch.    XVIII 

§  470.  Ewing  v.  Barnes  and  Silva  v.  Hopkinson  now  over- 
ruled: The  attempts  to  sustain  Ewing  v.  Barnes  and  Silva 
V.  Hopkinson  may  now,  however,  be  dispensed  with,  for  our 
Supreme  Court  shortly  after  the  criticism  above  referred  to,  in 
sustaining  the  validity  of  an  equitable  shifting  interest  created 
by  will  and  arising  upon  a  definite  failure  of  issue,-'  took  occa- 
sion to  say:  ''This  court  has  held  in  a  number  of  cases  that 
although  a  fee  cannot  be  limited  upon  a  fee  by  deed,  yet  it  can 
be  so  limited  by  will  by  way  of  executory  devise.  [Citing  sev- 
eral cases,  including  Siegwald  v.  Siegtvald,  37  111.  430.]  The 
case  of  EiL'ing  v.  Barnes,  156  111.  61,  so  far  as  it  holds  to  the 
contrary  is  overruled.  The  language  used  in  Silva  v.  Hopkinson, 
158  111.  386,  should  be  construed  as  applicable  only  to  the  facts 
of  that  case  and  not  as  contravening  the  doctrine  of  Siegwalcl 
V.  Siegwald  snpra,  and  the  other  cases  of  a  like  character  above 
referred  to."  The  recent  cases  have  established  beyond  ques- 
tion the  validity  in  general  of  springing  ^  and  shifting  ^  execu- 
tory devises. 

§  471.  The  recent  cases  have  also  disposed  of  the  fallacy 
that  because  some  shifting-  interests  were  void  for  "repug- 
nancy" all  must  be  void:  In  another  place"  those  cases  are 
dealt  with  in  detail  which  hold  that  shifting  gifts  over  by  w^y 
of  forfeiture  on  alienation  of  the  first  taker's  interest  and  gifts 
over  on  intestacy  are  void.  They  are  mentioned  here  because 
in  them  one  of  the  reasons  given  for  the  result  is  that  of  the 
repugnancy  of  the  gift  over  to  the  fee  or  absolute  interest  in 
the  first  taker."     This  reason  of  repugnancy,   often  repeated, 

Kennedy,    169    111.    360.      See    also  Daly,   284   111.   42;    Tulwiler   v.  Mc- 

.lohnson    v.    Johnson,    98    111.    564;  Clun,  285  111.  174;  Smith  v.  Carroll, 

Schaefer  v.  Schaefer,  141  111.  337.  286  III.  137;  Morris  v.  Phillips,  287 

3  Glover  v.  Condell,  163  111.  566.  111.  633. 

4  .lacobs  V.  Ditz,  260  111.  98;  Kolb  c  post,  S§  717-725. 

r.  Landes,  277  111.  440,  446.  ^  in  Aekless  v.  Seekright,  Breese 

sAhlfield  v.  Curtis,  229  111.   139;  (111.)    76,    our    Supreme    Court    ap- 

Mayer  v.   McCraeken,   245  111.   551;  proved  Chancellor  Kent's  view  that 

Askins  v.  Merritt,  254  111.  92;   Ash-  the  gift  over  on  intestaey  was  void. 

by  V.  McKinlock,  271  111.  254;   Pit-  Since    then    nothing    seems    to   have 

zer  V.   Morrison,   272   111.   291;    Mc-  been  ventured  except  that  the  gift 

Clintoek   v.    Meehan,    273    111.    434;  over  is  repugnant  to  the  devise  to 

Gawin  v.  Carroll,  276  111.  478;  Aloe  the  first  taker.    See  Welsch  v.  Belle- 

V.  Lowe,  278  111.  233;  Blaekstone  v.  ville  Savings  Bank,  94  111.  191,  203; 

Althouse,  278  111.  481;  Fitzgerald  v.  Wilson  v.  Turner,  164  111.  398,  405- 

544 


Ch.   XVIII]       SPRINGING   AND  SHIFTING  INTERESTS  [§  471 

came  in  the  minds  of  some  judges  to  mean  that  the  gift  over  was 
void  because  it  was  an  attempt  to  cut  short  a  previous  absolute 
bequest  or  devise  in  fee.  This  meant  that  all  shifting  executory 
devises  and  all  shifting  interests  by  deed  were  void.^  It  was  evi- 
dently while  laboring  under  this  misapprehension,  induced  by  an 
over-emphasis  of  the  reason  of  repugnancy,  that  our  Supreme 
Court  in  Ewing  v.  Barnes  »  and  Silva  v.  Hopkinson  ^^  held  an 
ordinary  executory  devise  over  on  a  definite  failure  of  issue  of 
the  first  taker  void,  and  in  Palmer  v.  Cook  ^^  held  a  similar  shift- 
ing interest  by  deed  void.  In  all  these  cases  alike  the  court  rested 
its  decision  on  the  ground  of  rcjjugnancy,  not  perceiving  at  all 
that  that  reason  was  confined  to  gifts  over  on  intestacy  and 
gifts  over  by  way  of  forfeiture  on  alienation  by  the  first  taker. 
In  Ewing  v.  Barnes  the  court  most  explicitly  rested  its  decision 
on  the  doctrine  of  repugnancy  as  referred  to  in  the  cases  of 
gifts  over  on  intestacy.  "This  is  clearly  an  attempt,"  said 
Mr.  Justice  Bailey,  "to  create  a  limitation  in  the  nature  of  a 
contingent  remainder  or  of  an  executory  devise.  Such  limita- 
tion being  clearly  inconsistent  with  the  devise  in  fee,  cannot 
be  sustained.  This  result  clearly  follows  from  the  doctrine  laid 
down  by  Chancellor  Kent  ^-  and  adopted  by  this  court  in  Wolfer 
V.  Hemnier."  In  recent  cases  the  court  has  not  only  repudiated 
Eidng  v.  Barnes,  Silva  v.  Hopkinson  ^^  and  Palmer  v.  Cook^'^ 
but  has  clearly  recognized  that  while  shifting  executory  devises 
in  general  are  valid,  gifts  over  by  way  of  forfeiture  on  aliena- 
tion by  the  first  taker  and  gifts  over  on  intestacy  are  void  for 

410;    Lambe    v.    Drayton,    182    111.       not    be    done.      Upon    the    absolute 

110,  116;    Dalrymple   v.  Leach,   192       transfer    of   an   estate,    the   grantor 

111.  51,  56;   Wolfer  v.  Heimner,  144       cannot,  by  any  restrictions  or  linii- 
111.  554.  tations  contained   in  the  instrument 

8  This  even  appears  from  the  ex-  of    transfer,    defeat    or    annul    the 

amination   of   the   language    of   the  legal    consequences    which    the    law 

Court  in  cases  where   the  gift  was  annexes    to    the    estate    thus    trans- 

in  fact  a  gift  over  on  intestacy  or  f erred. ' ' 

on  alienation  by  will.     Thus  in  Wil-  «  156  111.  61;  ante,  §469. 

son  V.  Turi^er,  164  111.  .^98,  409,  the  lo  158  111.  386;  ante,  §469. 

Court,  per  Craig,  J.  said:    "By  the  n  159  111.  300;  ante,  §445. 

limitation   over   the    testator   under-  12  4  Com.  270. 

took  to  take  away  the  absolute  prop-  ^^  Johnson  v.  Buck,   220   111.  226, 

erty    in   the    rents    which    had    been  2.^5;   Morton  v.  Babb,  251  111.  488, 

conferred  on  the  wife  by  a  preced-  492. 

ing  clause  in  the  will.     That  could  i-»  J/i/c,  §462. 

Kales  Fut.  Int. — 35  ^'^'^ 


§  472]  FUTURE    INTERESTS  [Ch.    XVIII 

special  reasons,  and  that  the  reason  of  repugnancy,  so  far  as  it 
may  be  a  reason  at  all,  applies  only  to  the  latter  class  of  shift- 
ing interests.  ^"^ 

TITLE   III. 
BY  MEANS  OF  TRUSTS— WHETHER  CREATED  INTER  VIVOS  OR 

BY  WILL. 

§  472.     Equitable  springing  and  shifting  interests  valid :    So 

far  as  equital)le  springing  and  shifting  future  interests  are  con- 
cerned, their  general  validity,  apart  from  the  question  of  remote- 
ness, and  the  rules  restricting  the  creation  of  gifts  over  by  way 
of  forfeiture  on  alienation,  may  be  entirely  relied  upon.^'^ 

TITLE  IV. 
VALIDITY  OF  GIFTS  TO  CLASSES. 

§473.  Under  the  feudal  land  law :  If  under  the  feudal  land 
law  a  conveyance  were  attempted  to  be  made  to  a  class  none 
of  whom  were  in  esse,  without  any  preceding  estate  whatever, 
it  failed  entirely  ^"^  for  two  reasons :  First,  because  there  was 
no  transferee  in  esse;  and  second,  because  springing  future  in- 
terests even  to  an  ascertained  transferee  were  void.  If  a  con- 
veyance were  attempted  to  A  and  his  children  "born  and  to 
be  born,"  or  to  the  children  of  A  "born  and  to  be  born,"  where 
one  child  was  in  esse,  the  gift  to  the  after-born  child  would,  if 
valid,  have  been  a  shifting  interest  divesting  pro  tanto  interests 
already  vested  in  possession.  This  was  contrary  to  the  feudal 
rule  and  the  gift  to  the  after-born  child  failed  entirely.^^ 

15  Mayer   v.    McCracken,    245    111.  See   also    Caruthers   v.   McNeill,   97 

551,    557;    Williams    v.    Elliott    246  111.  256;   Young  v.  Harkleroad,  166 

111.  548,  552;  Forbes  v.  Forbes,  261  111.    318,   and   Giles   v.  Anslow,   128 

111.  424,  430.  III.   187 ;   Hull  v.  Ensinger,  257   111. 

1*5  Gray's   Rule    against    Perpetui-  160. 

ties,    §  69.      In   Wilson   v.  Gait,    18  In  the   following  cases  there  was 

m.  431,  a  springing  trust  by   deed  a  shifting  equitable  interest  by  way 

was  fully  sustained.  of  trust:   Glover  v.  Condell,  163  111. 

Observe    the    following    examples  566.     See  also   Banta  v.  Boyd,   118 

of    springing  equitable   interests    of  111.   186;   Young  v.  Harkleroad,   166 

this    sort:       Rhoads    v.    Rhoads,    43  111.   318;    Arnold  v.   Alden,   173  111. 

111.    239;    Elatchford    v.    Newberry,  229;   Johnson  t;.  Buck,  220  111.  226; 

99   111.   11;    Gilman  v.  Bell,   99   111.  Defrees  v.  Brydon,  275  111.  530,  546. 

144;     Blanchard    v.    Maynard,    103  "  l   Hayes  on  Conveyancing,  5th 

111.   60;    McCartney   v.   Osburn,  118  ed.  p.  119;  ante,  §26. 

111.  403;  Hale  v.  Hale,  125  111.  399.  is  Id. 

546 


Ch,    XVIII]       SPRINGING    AND  SHIFTING   INTERESTS  [§  475 

§474.  By  devise  after  the  Statute  of  Wills :  P>y  will  spriiifr- 
ing  and  shifting  executory  devises  were  allowed.  This  meant 
that  the  devise  to  a  class,  none  of  whom  were  in  esse,  was  valid 
even  though  no  preceding  interest  was  attempted  to  be  con- 
ferred. The  devise  vested  in  the  first  member  of  the  class  born, 
subject  to  open  and  let  in  the  others  who  were,  by  the  proper 
interpretation  of  the  devise,  included.  So  if  a  member  of  the 
class  were  in  esse  when  the  testator  died  and  if  the  devise  were 
to  those  "born  and  to  be  born,"  the  gift  to  the  member  of  the 
class  in  esse  took  effect  subject  to  open  and  let  in  the  others.^'^ 
If  by  devise  there  is  limited  a  life  estate  to  A  with  a  remainder 
to  the  children  of  A  and  the  remaiftder  vests  in  interest  in  one 
child  born  before  A's  death,  it  is  subject  to  open  and  let  in 
others  born  after  the  testator's  death  and  before  the  death  of 
the  life  tenant.^*^ 

^  475.  By  a  conveyance  inter  vivos  which  can  take  effect  as 
a  bargain  and  sale  or  otherwise  by  way  of  use — (1)  If  the 
conveyance  is  to  "the  children  of  A  bom  and  to  be  bom"  and 
A  has  at  the  time  of  the  conveyance  no  children,  can  the  after- 
born  children  of  A  take?  This  is  purely  a  question  of  whether, 
or  how  far,  a  springing  interest  to  persons  not  m  esse  may  arise 
by  bargain  and  sale  or  covenant  to  stand  seized,  for  a  deed  in 
the  usual  form  can  always  take  effect  as  one  or  the  other,  if 
necessary  in  order  to  sustain  its  validity.-^  As  to  a  covenant 
to  stand  seized  to  the  use  of  a  person  not  in  esse  there  should  not 
be  the  slightest  doubt  about  its  effectiveness  so  long  as  the  cestui 
que  use  comes  within  the  consideration  of  blood.  Professor 
Gray,  in  his  Rule  against  Perpetuities,22  has  set  out  the  reason- 
ing upon  which  a  bargain  and  sale  to  a  person  not  in  esse  is  to 
be  sustained.  Owing,  however,  to  the  turn  which  the  authorities 
in  this  state  have  taken  in  regard  to  the  problem  discussed  in 
the  next  section,  the  application  of  the  views  set  out  must  be 
regarded  as  in  doubt.  In  Kepler  v.  Castle  -^  the  court  appears 
to  have  expressed  a  definite  opinion  that  a  deed  to  "the  heirs" 

i9Mogg    V.    Mogg,    1    Mer.    654;  20  See  «"<e,  §  308. 

Gooch  V.  Gooeh,  14  Bcav.  565;   Ed-  ^i  Ante,  S§  62,  456. 

(lowcs    V.    fiddowes,    30    Beav.    603;  22  §§  61-65. 

Cook    V.   Cook,   2   Vern.   .545;    Theo-  -281   111.  444.     See  also  DuftioUl 

bald  on  Wills,  7th  ed.  311.  v.  Duffiold,  268  111.  29. 

.547 


§  476]  FUTURE    INTERESTS  [Ch.    XVIII 

of  a  husband  and  wife  who  were  then  alive  is  void  because  no 
heirs  are  or  can  he  ascertained  when  the  deed  becomes  effective. 

§  476,  (2)  Suppose  A  has  at  the  time  of  the  conveyance  a 
child  in  esse:  It  is  well  settled  that  if  the  conveyance  be 
merely  to  the  ''children  of  A,"  and  A  have  existing  children, 
they  alone  will  take,  and  after-born  children  of  A  are  excluded.^-* 
This  goes  upon  the  ground  that,  by  the  proper  construction  of 
the  deed,  the  grantor  intended  that  only  existing  children  should 
take.25  How,  then,  shall  we  deal  wnth  the  case  where  the  grantor, 
by  using  the  words  "born  and  to  be  born,"  has  expressed  his  in- 
tent that  all  the  children  which  A  may  have  shall  take?  Can 
such  an  intent  be  given  effect  ?  This  is  a  question  of  the  validity 
of  shifting  interests.  "Will  the  children  in  existence  at  the  time 
the  deed  is  executed  take  the  fee  subject  to  open  and  let  in 
after-born  children?  This  question  has  in  other  jurisdictions 
very  properly  received  an  affirmative  answer.^^ 

Two  very  recent  Illinois  cases  have  answered  the  question  in 
the  negative.-"  In  Morris  v.  Caudle^^  the  conveyance  ran  to 
a  child  in  esse  and  his  "own  brothers  and  sisters."  He  had  no 
brothers  and  sisters  at  the  time  the  deed  was  signed,  but  one 
was  afterwards  born  and  lived  two  months.  The  deed  Avas  held 
to  have  taken  effect  as  to  the  one  in  existence  when  it  was  signed 
but  not  as  to  the  child  afterwards  born.  This  was  supported 
upon  the  hypothesis  that  the  deed  was  delivered  either  before 
or-  after  the  death  of  the  subsequently  born  child.  Upon  the 
latter  assumption  the  case  is  clearly  correct.  If,  however,  the 
deed  was  delivered  before  the  birth  of  the  after-born  child,  then, 
since  the  grantee  in  esse  had  no  brothers  and  sisters  at  that 
time,  the  deed  must,  by  its  proper  construction,  have  included 
all  the  brothers  and  sisters  of  the  grantee  in  esse  and  to  be 
born.2^  ^e  have,  then,  a  holding  that  such  an  intent  cannot 
be  given  effect  in  a  deed  in  the  ordinary  form  in  use  in  this 

24  Faloon   v.    Simshauser,   130   111.  Mellichainp,  28  S.  C.  125;  Pierce  v. 

649;   Elphinstone   on   Interpretation  Brooks,  52  Ga.  425. 

of  Deeds,  p.  358.  27  See   also  Cooper  v.   Cooper,  76 

23  Post,  §  564.  111.  57,  60,  66. 

2oMogg    V.    Mogg,    1    Mer.    654;  28  178  111.  9. 

Kales'    Cases   on   Future    Interests,  29  See,     for     instance,     Weld     v. 

232 ;    3    Preston    on    Conveyancing,  Bradbury,  2  Vern.  705,  where  upon  a 

555;  1  Hayes  on  Conveyancing,  5th  devise  to   children  of  A,  A  having 

•  ed.  119,  ante,  §452;  Mcllichamp  v.  no    children    at    the    time    the    will 

548 


Ch.    XVIII]       SPRINGING   AND  SHIFTING    INTERESTS  [§476 

state.  Miller  v.  McAlister,'^'^  is  more  palpably  to  the  same  effect. 
The  deed  there  involved  conveyed  to  M.  E.  McA.  "and  her  chil- 
dren born  and  to  be  born."  It  was  held  that  only  the  children 
born  when  the  deed  was  delivered  could  take.  One  born  after- 
wards was,  the  court  held,  properly  excluded. ^^ 

So  serious  and  direct  an  interference  with  the  expressed  will 
of  the  grantor  deserves  some  explanation.  For  authority  the 
Supreme  Court  cites  only  its  own  case  of  Faloon  v.  Simshmiser.^'^ 
This,  however,  does  not  touch  the  point  at  all,  since  there  the 
conveyance  was  to  A  "and  her  children"  and  by  the  proper 
construction  of  the  deed  only  children  in  existence  at  the  time 
the  deed  was  executed  were  designated.  So  far  as  the  matter 
was  considered  upon  principle,  the  court  says  in  Miller  v.  Mc- 
Alister:^^  "A  grantee  must  be  in  esse  at  the  time  the  deed  is 
executed,  otherwise  no  title  will  pass  by  the  deed."  In  short, 
you  cannot  by  deed  have  an  immediate  vested  gift  to  one  per- 
son which  will  afterward  be  divested  pro  tanto  in  favor  of  an 
after-born  child.  You  cannot  do  by  deed  what  you  can  do  by 
will. 34  Such  a  rule  is  reactionary'.  It  is  the  application  of  a 
principle  which  got  its  life  from  the  feudal  system  of  conveyanc- 
ing.3'  It  ignores  the  fact  that  every  modern  deed  containing 
the  recital  of  a  consideration  may,  if  desired,  operate  as  a  bar- 
gain and  sale  under  the  Statute  of  Uses,^"  and  that,  whatever 
supposed  difficulties  there  may  be  with  regard  to  a  bargain  and 
sale  to  persons,  none  of  whom  are  in  esse,^'  there  can  be  no  doubt 
about  the  validity  of  the  limitations  where  there  is  one  grantee 
in  esse  who  might  have  paid  the  consideration  and  taken  the 
whole  legal  title  at  once.^^  It  ignores,  too,  the  freedom  which 
such  modern  legislation  as  sec.  1  of  our  Act  on  Conveyances  ^^ 
may  have  introduced.^" 

was  made  or  at  the  death  of  the 
testator,  it  was  held  that  all  the 
children  of  A  born  at  any  time 
were  included. 

30  197  111.  72. 

31  See  also  Duffield  v.  Duffield, 
268  111.  29;  Dick  v.  Rieker,  222  111. 
413,  416. 

32  130  111.  649. 

33  197  111.  72,  at  p.  77. 
31  Post,  §  467. 

549 


33  Ante, 

§§26, 

451. 

38  Ante, 

§  456. 

37  Ante, 

§  475. 

38  1   Hayes  on 

Conv 

eyanein 

g. 

5th 

ed.  119;   ante,  §452. 

39  E.    L 

.    1827, 

p.   9 

5,    §  1; 

R. 

S. 

1845,  ch. 

24,    §] 

■    (P- 

102); 

R. 

S. 

1874,  ch.  30,  §1; 

1  A. 

&D.  R 

.  E. 

,  S. 

pp.  75,  100. 

40  Anle, 

§458. 

§  477]  FUTURE    INTERESTS  [Cn.    XVIII 

5;  477.  (3)  Suppose  that  by  deed  the  limitations  are  to  A 
for  life  remainder  to  the  children  of  A  "bom  and  to  be  born," 
and  one  child  is  in  esse  at  the  time  of  the  conveyance:     On 

priiieii)le  there  is  no  difference  between  the  situation  of  the 
after-born  child  in  this  case  and  that  of  the  after-born  child 
where  there  is  no  preceding  life  estate.  If  he  cannot  take  where 
no  preceding  estate  is  limited  then  he  cannot  take  in  the  case  now 
put.  Yet  our  Supreme  Court  is  committed  to  the  rule  that  when 
an  estate  tail  is  created  by  deed,  which  the  statute  turns  into  a 
life  estate  in  the  donee  in  tail  with  a  remainder  in  fee  to  his 
children  vested  and  indefeasible  on  the  birth  of  any  child,  the 
remainder  opens  during  the  life  of  the  life  tenant  to  let  in  after- 
born  children. •*!  It  is  difficult  to  believe  that  the  same  result 
will  not  be  reached  when  the  court  has  before  it  a  case  where 
there  is  limited  by  deed  a  life  estate  to  A  with  a  remainder 
vested  in  A's  children  on  birth.'i- 

§  478.  By  the  creation  of  equitable  interests  in  favor  of  the 
class:  If  the  interest  of  the  class  is  equitable  there  is,  it  is 
believed,  no  reason  why  (apart  from  such  special  rules  as  the 
Rule  against  Perpetuities)  the  gift  to  the  class  should  not  be 
carried  out  as  it  is  expressed.  If  land  be  limited  to  trustees 
upon  trust,  with  active  duties,  for  the  children  of  A  "born  and 
to  be  born,"  the  after-born  children  are  entitled  whether  any 
were  in  esse  when  the  deed  was  executed  or  not  and  whether 
there  is  any  preceding  life  estate  or  not. 

TITLE  V. 

ALIENATION  OF  SPRINGING  AND  SHIFTING  FUTURE  INTERESTS 
IN  LAND— PARTITION." 

§  479.    By  descent,  devise,  release,  and  sale  on  execution : 

As  an  executory  devise,  before  coming  into  possession,  is  never 
vested  the  problem  of  how  far  such  an  interest  is  alienable  may 
be  referred  to  the  more  general  question  of  how  far  future  in- 
terests not  vested  are  alienable.     It  would  seem  safe  to  argue 

41  Richardson  v.  Van  Gundy,  271  held  the  remainder  to  the  children 
111.  476;  Moore  v.  Reddel,  2.59  111.  of  the  life  tenant  vested,  also  held 
.36;   Kyner  v.  Boll,  182  111.  171.  that  the  remainder  opened  to  let  in 

42  Indeed,   the  Supreme   Court   in  after-born  children. 

its  first  opinion  in  Hill  v.  Hill,  264  43  As    to    partition    of    executory 

111.    219    (not   published),    where   it       interests,  see  ante,  §398. 

550 


Ch.    XVIII]       SPRINGING    AND  SHIFTING   INTERESTS  [§480 

that  there  was  as  mueh  freedom  in  the  alienation  of  executory 
devises  as  in  the  alienation  of  contingent  remainders.'*''  If  so 
the  executory  devise  may  pass  by  descent^''  or  devise,  provided 
always  of  course,  the  death  of  the  executory  devisee  be  not  itself 
such  an  event  as  prevents  the  executory  devise  from  ever  com- 
ing into  possession.  So,  the  executory  devisee's  interest  may  be 
released  to  the  holder  of  the  preceding  interest  ^^  just  as  a  con- 
tingent remainderman  may  release  to  the  holder  of  the  particular 
estate*'  It  seems,  however,  that  an  executory  devisee's  legal 
interest  is  not  subject  to  sale  on  execution.'*^ 

§  480.  By  a  conveyance  to  a  strang-er  inter  vivos — Validity 
at  law:  The  difficult  question  is  this:  Can  the  executory 
devisee  convey  ititer  vivos  by  an  instrument  suffieient  to  pass 
his  future  interest  if  it  had  been  vested? 

If  the  deed  contain  covenants  of  title  doubtless  the  doctrine 
of  estoppel  may  be  invoked  to  pass  any  interest  subsequently 
becoming  vested. "^^ 

In  the  absence  of  any  statute  or  ground  of  estoppel  it  seems 
to  be  the  rule  of  the  English  cases  that  an  executory  devise,  like 
a  contingent  remainder,  is  not  transferable  by  deed  of  grant  to 
a  stranger.^*'  Why  is  this?  A  contingent  remainder  was  not 
transferable  in  this  manner  because,  first,  feudally  it  was  noth- 
ing until  it  was  vested,  and,  second,  a  feudal  public  policy  for- 
bade such  conveyances,  as  being  champertous.''^  Until  Pells 
V.  Brown,^-  in  1620 — that  is  for  nearly  a  century  after  executory 
devises  came  to  be  recognized  as  valid  under  the  Statute  of 
Wills  of  Henry  VIII — there  were  indications  that  they  were  to 
be  put  on  the  same  footing  as  contingent  remainders.^^  Per- 
haps it  was  during  that  time  that  the  rules  applicable  to  the 

**  Ante,  §§320  ei  seq.  49  Smith  v.  Carroll,  286  111.  137; 

«  Acklees     v.     Seekright,    Breese  Gav\'in  v.  Carroll,  276  111.  478,  481 ; 

(111.)    76;    Blackstone    v.    Althousc,  ante,   §321.     As  to  how  far  an  ex- 

278    HI.    481 ;    Fitzgerald    i'.    Daly,  ecutory  devise  may  pass  by  estoppel 

284  111.  42.  upon  a  lease  and  release,  see  Ridge- 

«  Williams  v.  Esten,  179  111.  267.  way  v.  Underwood,  67  111.  419,  428. 

But  see  Cummings  v.  Lohr,  246  111.  ^o  Smith  on  Executory  De\-i8es,   § 

577;    ante,   §  320a.  751;  2  Preston  on  Abstracts,  284. 

*■!  Ante,  §  320a.  si  Ante,  §  48. 

♦8  Ridgeway  v.  Underwood,  67  111.  =-•  Cro.  Jae.  590;  2  Roll.  Rep.  196. 

419,   430;    Jacobs   v.   Ditz,   260   111.  =3  Gray,    Rule    against    Perpetui- 

98.  ties,   §§  142-147,   159. 

5r)l 


§  481]  FUTURE    INTERESTS  [Ch.    XVIII 

transfer  of  contingent  remainders  came  to  control  the  convey- 
ance of  an  executory  devise.  Then,  by  the  time  the  conveyance 
of  such  interests  ceased  to  be  champertous,  and  executory  de- 
vises, by  becoming  indestructible  under  Pells  v.  Brown,  became 
something y^"^  even  before  vesting,  it  was  too  late  to  change  the 
rule  concerning  their  transferability.  Since  our  Supreme  Court 
has  followed  the  common  law  rule  that  contingent  remainders 
are  inalienable  inter  vivos,  we  should  expect  the  court  to  fol- 
low with  the  same  strictness  the  rule  that  springing  and  shift- 
ing future  interests  are  inalienable  inter  vivos.  Yet  in  two  re- 
cent cases  there  are  dicta  to  the  effect  that  where  "the  identity 
of  the  executory  devisee  is  certain  and  the  object  of  the  devise 
is  fixed,  so  that  upon  the  happening  of  the  contingency  the 
executory  devisee  will  take  the  estate,  the  future  interests  is 
assignable  and  transmissible. ' '  ^^  Very  likely  the  court  was 
only  referring  to  transmissibility  by  descent. 

§  481.  In  equity:  In  equity  at  least  springing  and  shifting 
future  interests  are  assignable  ^"^  in  the  sense  that  the  attempted 
conveyance  will  be  treated  as  a  contract  to  convey,  of  which 
equity  will  give  specific  performance  if  the  proper  requirements 
as  to  the  consideration  given  have  been  fulfilled,'^'^  and  if  the 
event  has  happened  upon  which  the  future  interest  is  to  take  ef- 
fect.^^  The  conveyance,  however,  must  show  an  intent  to  trans- 
fer the  future  interest.  As  to  when  the  instrument  of  convey- 
ance sufficiently  shows  such  an  intent,  it  is  believed  that  no  dis- 
tinction need  be  made  between  the  case  of  a  legal  executory 
devise  and  springing  and  shifting  equitable  interests  by  will. 

The  careful  conveyancer,  of  course,  will  so  draft  the  instru- 
ment that  the  future  interest  to  be  transferred  is  expressly  de- 
scribed and  mentioned,  leaving  no  doubt  as  to  the  intention  of 
the  transferor  to  convey  it. 

Suppose,  however,  the  future  interest  is  not  mentioned  ex- 

-S4" These  limitations  [executory  481,  Farmer,  J.,  said:  "It  is  gen- 
devises]  are  not  held  to  be  mere  erally,  though  perhaps  not  universal- 
possibilities,  but  are  regarded  as  ly,  held  that  executory  devises  are 
substantial  interests  or  estates,"  alienable  when  the  devisee  is  an 
fer  Walker,  J.,  in  Waldo  v.  Cum-  ascertained  person." 
niings,  45  111.  421,  428.  5a  Smith    on    Executory    Devises, 

55  Per    Cartwright,    J.,    in    Black-  §  749. 

stone  V.  Althouse,  278  111.  481,  486.  57  See  ante,  §§  369  et  seq. 

In  Gavvin  v.  Carroll.  276  111.  478,  ss  Cummings  v.  Lohr,  246  111.  577. 


Ch.    XVIII]       SPRINGING    AND  SHIFTING   INTERESTS  [§  481 

pressly.    Suppose,  for  instance,  there  is  merely  a  quit  claim  deed 
from  the  executory  devisee. 

If  the  transferor  has  a  present,  as  well  as  a  future  interest  in 
the  property  mentioned  in  the  deed,  it  seems  clear  that  there  will 
be  no  expressed  intent  to  convey  the  future  interestj-''^  and  it 
seems  to  make  no  difference  whether  the  quit  claim  deed  be  gov- 
erned by  the  law  as  it  stood  before  «°  the  act  of  1872  concern- 
ing the  effect  of  the  statutory  quit  claim  deed,  or  after  that  act/'^ 
Even  where  the  grantor  and  grantee  are  co-tenants  and  their 
quit  claim  deeds  are  mutual  and  by  way  of  partition,  only  the 
interest  in  possession  is  affected  and  the  future  interest  remains 
as  it  was.  Thus,  if  each  has  an  undivided  interest  in  fee  with  a 
gift  over  in  case  he  dies  without  children  to  the  survivor,  upon 
a  partition  and  giving  of  quit  claim  deeds  each  will  hold  the 
fee  which  is  allotted  to  him,  but  with  a  gift  over  to  the  survivor 
if  he  dies  without  children."^ 

Suppose,  however,  that  the  grantor  has  only  a  future  interest 
in  the  land  mentioned  and  nothing  else.  Is  a  quit  claim  deed  in 
the  usual  form,  without  mentioning  any  future  interest,  suffi- 
cient in  equity  to  transfer  the  executory  devise  ?  The  cases  seem 
inclined  to  answer  this  question  in  the  negative.  In  Kingman  v. 
Harmon,^^  the  testator  (as  the  court  construed  the  will  there  in- 
'  volved)  created  a  springing  executory  interest  by  devising  lands 
to  his  children  to  be  divided  among  them  when  the  youngest  at- 
tained the  age  of  twenty  years.*'^  The  guardian  of  the  children 
by  proceedings  in  the  county  court,^^  mortgaged  the  children's 
interest.  On  a  bill  to  foreclose  the  mortgages  it  was  assumed 
that  since  the  children's  interest  was  contingent   (as  the  court 

59  Ridgeway  v.  Underwood,  67  111.  «-  Thompson  v.  Becker,  194  111. 
419;  Glover  v.  Condell,  163  111.  119;  Striker  v.  Mott,  28  N.  Y.  82. 
566;  Thompson  v.  Becker,  194  111.  Contra,  Coates  Street,  2  Ashm. 
119.      See   also   Shephard   v.    Clark,  (Pa.)  12. 

38  111.  App.  66.    Compare,  however,  es  131  JH.   I7i: 

Goff    I'.    Pensenhafer,    190    111.    200,  64  The    trustees    took    apparently 

216.  for  a  term  of  years,  until  the  young- 

60  Ridgeway  v.  Underwood,  67  111.  est  reached  the  age  specified.  They 
419.  did  not   hold  the   fee  subject   to  a 

61  Glover  v.  Condell,  163  111.  566;  trust  to  divide  gind  distribute  it 
Thompson   v.   Becker,   194   111.    119.       among  the  children. 

See  also  Shephard  v.  Clark,  38  111.  «5  No  objection  was  made  to  these 

App.  66.     Compare  Goff  v.  Pensen-       proceedings,   so  it   is   assumed   that 
hafer,  190  111.  200,  216.  they   were   proper. 

553 


§  482]  FUTURE    INTERESTS  [Ch.    XVIII 

put  it)  the  wards  had  no  assignable  estate.  It  may  be  that  the 
court  meant  that  under  the  statute  the  guardian  had  no  power 
to  convey  an  interest  which  w'as  not  assignable  at  law  by  the 
party  if  he  had  been  of  age.*'"  Such  a  view  would  dispose  of 
the  ease  without  any  decision  as  to  whether  in  equity  the  deed 
would  be  taken  to  refer  to  the  future  interest  and  thereby  op- 
erate in  equity  as  if  made  by  the  ward  if  of  full  age. 

Both  Xevius  v.  Gourley  ^"^  and  Ca^sem  v.  Kennedy, ^^  present 
instances  of  the  attempted  transfer  of  legal  executory  devises. 
In  both  cases  there  had  been  a  conveyance  bj^  deed  and  in  both 
relief  was  sought  by  the  transferee.  In  neither  case,  however, 
had  the  event  happened  upon  which  the  future  interest  was  to 
take  effect.  In  the  first  case  it  never  could  take  effect  and  so 
the  assignee  of  the  future  interest  by  way  of  mortgage,  was 
denied  any  foreclosure.  In  the  latter  case  the  assignee  brought 
a  bUl  to  construe  the  vnl\  and  this  was  dismissed.  The  decision 
might  have  been  put  on  the  ground  that  the  actual  question 
might  never  require  a  decision.  Upon  the  plaintiff's  applica- 
tion, however,  the  court  declared  that  the  executoiy  de\'isees' 
deed  "conveyed  nothing." 

TITLE  VI. 
^VHEN  AN  EXECUTORY  INTEREST  VESTS  IN  INTEREST. 

§  482.  Springing  and  shifting  future  interests  never  vest 
in  interest  till  they  take  effect  in  possession  or  are  turned  into 
vested  remainders:'^''  It  does  not  follow,  however,  that  an 
executory  interest  is  always  contingent  until  it  vests.  It  may 
be  an  interest  which  is  neither  vested  nor  contingent,''^  but 
merely  what  is  known  as  a  "certain  executory  interest. "  "^^ 
Such  is  a  gift  to  take  effect  at  a  certain  time  in  the  future, 

«6Shephard  v.  Clark,  38  111.  App.  Becker,  194  111.  119,  122;  Friedman 

66;  ante,  §320.  v.   Steiner,    107   III.    125,    132,    133. 

87  95  III.  206 ;  97  111.  365.  Any  expression   to  the   contrary   in 

"8  147  111.  660.  Hempstead  v.  Dickinson,  20  111.  193, 

70  Gray's   Rule   against  Perpetui-  196,  must  be  regarded  as  a  slip, 
ties,    §114;    Glover   v.   Condell,   163  7i  Gray's   Rule   against    Perpetui- 

m.  566,  593:  "By  an  executory  de-  ties,    §114;    1    Fearne,    Contingent 

vise  no  estate  vests  upon  the  death  Remainders,  1,  Butler's  note, 
of  tB©  testator,  but  only  on  gome  ^z  Smith    on    Execiitory    Dorises, 

future  contingency."    Thompson  v.  §§85,  90,  117,  301. 

554 


Ch.  XVJIIJ     springing  and  shifting  interests  [§482 

which  is  sure  to  arrive — as  a  gift  to  come  into  possession  after 
ten  years,^^  or  after  a  certain  life.'^* 

In  Blanchard  v.  Maynard,''^  it  was  recognized  that  the  certain 
executory  interest  could  not  be  vested.  There  the  testator  de- 
vised real  estate  and  personal  property  to  trustees  to  hold  and 
manage  for  ten  years.  At  the  end  of  the  ten  years  all  the  estate 
and  income  was  to  be  distributed  and  vest  in  the  testator's 
three  sons,  with  a  gift  over  to  the  survivors  in  case  any  son  died 
leaving  no  issue  before  the  ten  years  had  elapsed.  One  of  the 
sons  did  die  before  the  ten  years  had  elapsed  and  his  wife 
claimed  dower  and  a  share  by  descent.  Her  bill  was,  however, 
dismis.sed  and  this  was  affirmed.  Assuming  the  rule  of  Buck- 
worth  V.  ThirkeU,''^  to  be  the  law  of  this  state,  it  is  clear  that 
the  ground  that  the  son  had  no  vested  interest  in  the  lands  in- 
volved till  the  ten  years  had  expired  was  sufficient."" 

In  Burton  v.  Gagnon,"^  however,  we  have  an  instance  where 
tlie  opinion  published  as  that  of  the  court  takes  the  position 
that  a  sliifting  executory  devise  is  a  vested  interest.  The  will 
involved  in  that  ease,  after  making  a  gift  to  children,  which  the 
court  recognized  as  an  absolute  one,  provided  for  a  gift  over 
in  case  ''all  of  my  children  die  intestate  and  without  lawful 
issue  and  not  survive  my  wife."  A  decree  for  the  complainants 
that  the  gift  over  was  ineffective  as  against  the  first  takers 
was  affirmed.  One  of  the  grounds  for  this  holding  was  that  the 
executory  devises  were  precluded  by  a  former  decree  in  parti- 
tion to  which  they  were  parties.  To  this  the  executory  devisees 
answered  that  their  interest  was  contingent  and  so  it  could  not 
have  been  the  subject  of  adjudication  in  the  partition  suit.  The 
court  replied  that  the  interest  of  the  executory  devisees  was 

73  Gray's   Rule   against    Perpetui-  ts  103  111.  60. 

ties,   §114;    Blanchard  v.  Maynard,  76  gee  po.?^  S  48-4. 

103  111.   60;    Rhoads  v.   Rhoads,  43  77  it    seems,    however,    that    it    is 

111.  239,  post,  §  732.  also   law   that   where   the   owner   of 

'*  In    Young    r.    Harkleroad,    166  a  reversion  dies  before  the  termina- 

111.  318   there  was  a  not  uncommon  tion   of    the    life   estate,   his   widow 

gift  to  take  effect  after  the  death  is  not  entitled  to  dower:    Kellett  r. 

of  the  testator's  wife,  without  ap-  Shepard,    139    111.    433,    449;    ante, 

parently    disposing   of   any   interest  §  30. 
to   the  wife   in   the   meantime.    No  78  igO  111.  345. 

question,  however,  arose  on  the  na- 
ture of  the  gift  in  question. 

555 


§  483]  FUTURE    INTERESTS  [Ch.    XVIII 

vested — apparently  upon  some  such  view  of  what  interests  are 
vested  as  afterwards  obtained  in  Boatman  v.  Boatman  "»  and 
Chapin  v.  Nott.^"^  The  court  said :  ^^  "Here  the  persons  to  take 
were  in  being  and  ascertained,  and  by  the  language  of  the  limita- 
tion it  was  to  take  effect  when  the  contingency  indicated  might 
happen.  That  was  sufficient.  The  fact  that  the  event  was  uncer- 
tain upon  which  the  limitation  over  might  become  effectual  was 
immaterial."  This  view  is  only  the  opinion  of  a  minority. 
Three  judges  dissented  entirely,  and  Mr.  Justice  Wilkin,  while 
agreeing  in  the  result,  did  "not  consent  to  the  construction 
placed  upon  the  will," — that  is,  he  dissented  from  the  view  that 
the  future  interest  was  vested.^^ 

TITLE  VII. 

INDESTEUCTIBILITY  OF  SPEINGINO  AND  SHIFTING  FUTUEE 

INTEEESTS. 

§483.  General  principle :  When  a  future  interest  is  spoken 
of  as  destructible,  destructibility  by  a  rule  of  law  defeating 
the  expressed  intention  of  the  settlor,  is  referred  to.  Thus,  the 
rule  of  law  which  requires  certain  contingent  future  interests 
after  a  particular  estate  of  freehold  to  vest  in  possession  at 
the  termination  of  the  preceding  estate  or  fail  entirely,^^  made 
the  future  interest  destructible  by  the  act  of  the  holder  of  the 
preceding  estate  in  prematurely  terminating  the  preceding  in- 
terest by  forfeiture  or  merger.  The  idea  of  destructibility,  then, 
became  associated  with  the  power  of  the  owner  of  the  first  in- 
terest to  destroy  the  second.  , 

Since  Pells  v.  Brown,^^  in  1620,  it  is  fundamental  that  spring- 
ing and  shifting  interests  by  way  of  use  or  devise  are  not 
destructible  in  this  sense  by  any  act  of  the  first  taker.^s    There  is 

79  198  111.  414;  ante,  §365.  devises]    are    not    held    to    be   mere 

St-  203  111.  341 ;   ante,  §  366.  possibilities,    but    are    regarded    as 

81  p.  356.  substantial  interests  or  estates." 

82  Post,  §  725.  85  Williams  v.  Elliott,  246  111. 
fi^  Ante,  §§28,  97,  310  et  seq.  548,  552;  Jacobs  v.  Ditz,  260  111. 
8*  Cro.  Jac.  590;  2  EoU.  Eep.  196,  98;  Blackstone  v.  Althouse,  278  111. 

216.     The   fact  that   executory   de-  481,    485,   486;    Morris   v.   Phillips, 

vises    are    indestructible    makes    it  287  111.  633. 

proper  for  our  Supreme  Court  to  say  Where  the  first  taker  has   a  fee 

in  Waldo  v.  Cummings,  45  111.  421,  subject   to  a  shifting  executory   de- 

428:    "These  limitations  [executory  vise   over,   there   is   no   reversion   in 

556 


ClI.    XVIII]       SPRINGING    AND   SlIltTING    INTERESTS  L§484 

no  exception  to  this  in  tlie  ease  where  the  gift  over  is  to  take 
effect  only  if  the  llrst  taker  alienates  in  a  particular  manner. 
In  such  eases  the  gift  over  is  usually  held  invalid  as  being  an 
illegal  forfeiture  upon  alienation. ^"^  But  if  the  gift  over  be  held 
valid,  as  in  the  case  of  an  executory  limitation  conditioned  to 
take  effect  upon  the  first  taker's  dying  without  issue  him  sur- 
viving and  intestate,  it  is  clear  that  if  the  first  taker  alienate 
by  deed  or  will  tiie  event  will  never  happen  upon  which  the 
gift  over  is  to  take  effect.  lience,  it  will  fail.  In  a  very  loose 
sense  it  may  be  said  that  the  conditional  limitation  is  destruct- 
ible by  the  act  of  the  first  taker.  It  was  only  in  this  sense  that 
it  was  hinted  in  Friedman  v.  Steiner.^'^  that  the  future  interest 
might  be  defeated. 

TITLE  VIII. 

WHETHER  DOWER  IN  THE  FIRST  TAKER'S  FEE  IS  DEFEATED 
BY  THE  TAKING  EFFECT  OF  A  SHIFTING  GIFT  OVER. 

§  484.  Buckworth  v.  Thirkell:  ^^  In  this  ease  a  fee  w^as 
devised  to  A  with  a  shifting  executory  devise  over  to  B  if  A  died 
under  twenty-one  without  having  issue.  The  event  happened. 
The  executory  devise  took  effect.  It  was  held,  however,  that 
A's  wife  had  dower  as  against  the  executory  devisee.  This  has 
recently  been  followed  in  this  state.^^  The  soundness  of  this 
has  been  questioned  and  it  should  be  observed  that  where  A 
had  a  fee  with  a  general  power  to  appoint  by  deed  or  will  and 
appointed  in  his  lifetime  to  B  and  then  died,  A's  wafe  did  not 
have  dower.^*^  Yet  the  cases  are  the  same  in  principle.  The 
appointee,  when  the  power  was  exercised,  took  a  shifting  in- 
terest cutting  short  the  previous  fee  of  A. 

which  the  first  taker's   interest  can  note;  6  Gray's  Cases  on  Prop.,  2nd 

merge:     Morris  v.   Phillips,  287  111.  ed.   588;   1   Seribner  on  Dower,  2nd 

633 ;   Stollcr  v.  Doyle,  257  111.  369.  ed.   302 ;    10   Am.  &  Eng.   Enc.  2ud 

»>>Pos1,   §§717-725.  ed.  161;  ante,  §465,  note  72. 

87  107  111.  125;  post,  §§724,  725.  89  Aloe  v.  Lowe,  278  111.  233. 

88  Coll.  Juris.,  322;  3  Bos.  &  Pul.  so  Sugden  on  Powers,  8th  ed.  144. 
652,    note;    Co.    Lit.    241a,   Butler's 


557 


CHAPTER  XIX. 
FUTURE  INTERESTS  IN  PERSONAL  PROPEHTY.i 

§485.  Their  validity— In  general:  Where  personal  prop- 
erty is  conveyed  eitlier  inter  vivos  ~  or  by  will  ^  upon  certain 
trusts,  it  seems  that  the  equitable  future  interests  of  whatever 
sort  are  validly  created.^  The  important  problem  of  his  chap- 
ter is :  How  far  are  future  interests  in  personal  property  valid 
where  there  is  no  intervention  of  trustees  and  no  trust  created? 

So  far  as  future  interests  in  chattels  real  are  concerned  we 
have  no  actual  decisions.  Our  Supreme  Court  has,  however,  on 
two  occasions  recognized  the  validity  of  a  gift  by  will  after 
an  expressed  life  interest  in  a  chattel  real.  In  Waldo  v.  Cum- 
mings^  the  court  recognized  the  force  of  Manning's  case '^  and 
Lampet's  case '^  which  established  the  validity  of  such  a  future 
interest.  In  Welsch  v.  Bellville  Savings  Bank  »  the  same  result 
was  approved.  As  to  the  creation  of  future  interests  in  chattels 
real  by  a  transfer  inter  vivos,  there  is  nothing  in  this  state  ex- 
cept what  may  by  inference  be  included  in  the  dicta  and  de- 
cisions recognizing  the  validity  of  future  interests  in  chattels 
personal  ^  created  in  this  manner. 

As  regards  chattels  personal  it  seems  to  be  the  law  here  that 
the  future  interest  limited  by  will  after  a  gift  for  life  is  en- 
forcible.^'^     The  validity  of  the  same  future  interest  when  at- 

1  Ante,  §§  107-112.  ''  8  Co.  94b. 

2  Welsch     V.     Belleville     Savings  7  lo  Co.  46b  (1612). 
Bank,  94  111.  191,  205.  «  94  111.  191,  204. 

3  Hetfield  v.  Fowler,  60  111.  45 ;  "  See  infra  this  section. 
Buckingham  v.  Morrison,  136  111.  lo  Waldo  v.  Cummings,  45  111. 
437;  Davenport  v.  Kirkland,  156  421;  Burnett  v.  Lester,  53  111.  325; 
111. 'l69;  Glover  v.  Condell,  163  111.  Trogdon  v.  Murphy,  85  111.  119; 
566;  Kansdell  v.  Boston,  172  111.  Walker  v.  Pritchard,  121  111.  221; 
439,  semble;  Chapman  v.  Cheney,  Welsch  v.  Belleville  Savings  Bank, 
191  111.  574.  94   111.    191,   semhle;   In  re   Estate 

4  Gray  on  Eule  against  Perpetui-  of  Cashm'an,  134  111.  88,  semble; 
ties    §§75    78,  87.  Dickinson    v.   Griggsville   Nat.    Bk., 

5  45  111.  421   427.  209  111.  350,   353,  semble;  Dean  v. 

558 


Ch.    XIX]     FUTURE   INTERESTS  IN  PERSONAL  PROPERTY  [§486 

tempted  to  be  created  by  deed  might  well  have  been  regarded 
as  left  in  doubt  by  tlie  dictum  of  ]\Ir.  Justice  ^lulkey  in  Wehch 
V.  Belleville  Savings  BunJc^^  But  since  the  case  of  McCall  v. 
Lee  12  the  rule  in  this  state  is  settled,  that  such  an  interest  can 
be  limited  by  deed.  The  case  goes  beyond  tliat  proposition  be- 
cause there  the  instrument,  by  which  tlic  futui-e  interest  was 
created,  was  not  even  a  deed,  it  was  simi)ly  a  written  contract 
founded  upon  valuable  consideration  accompanied  by  a  delivery 
of  the  personal  proi)crty  itself  to  the  fii-st  taker. 

!:$  486.  Exception  where  articles  are  necessarily  consumed 
in  the  using:  It  is  well  settled  that  upon  a  gift  to  A  for  life 
of  specific  chattels  personal  which  are  bj'  their  nature  to  be  en- 
joj-ed  and  used  by  consuming  them,  as  a  cellar  of  wine,  the 
absolute  property  passes  to  A.  He  may  consume  them  and 
he  will  be  answerable  to  nobody.  This  proposition  is  clearly 
recognized  by  the  dicta  of  our  Supreme  Court. ^^  Suppose,  now, 
that  a  future  interest  in  these  same  chattels  be  limited  to  B 
absolutely  after  the  death  of  A,  to  whom  a  gift  for  life  is  made, 
and  that  at  the  time  of  A's  death  a  portion  of  them  have  not 
been  consumed,  will  the  future  interest  take  effect  as  to  the 
unconsumed  portion  as  a  valid  executory  devise  after  an  ab- 
solute interest,  or  will  it  fail  as  an  attempted  gift  w'hich  is  void 
for  uncertainty?  '"*  This  is  a  question  of  some  nicety  upon  the 
authorities  at  large. ^^  Our  Supreme  Court  has  not  hinted  at 
the  result  which  it  might  reach. i*'' 

Northern    Trust    Co.,    266    111.    205.  Dickinson    v.    Griggsville   Nat.    Bk., 

See  also  Wilson  v.  Turner,  164  111.  209  111.  350,  3o3;  2  Williams  Exec- 

398;   55  111.  App.  543;  Randolph  v.  utors,   7th  Am.  from  9th  Engl.  ed. 

Hamilton,  84  111.  App.  399.  star  page  1253. 

In  Defrees  v.  Brydon,  275  111.  530,  i4  Ante,  §  722. 

542,   "Executory   devises  are  appli-  is  In  favor  of  the  future  interest 

cable    to    testamentary    dispositions  in    such    a    case:     Hayle    v.    Burro- 

of  personal  property  as  well  as  real  dale,    1    Eq.    Cas.    Abr.    361,     §  8 

estate."  (1702);    Healey   v.   Toppan,   45  N. 

11  94  111.  191,  205.  H.  243,  260,  semble. 

12  120  111.  261.  See  also  Thorn-  Contra:  Randall  v.  Russell,  3 
ton  V.  Davenport,  1  Scam.  (2  111.)  Meriv.,  190  (1817),  semble:  An- 
296,  299,  semble,  accord.  drew    v.    Andrew,    1    Coll.    Ch.    Cas. 

13  Burnett  v.  Lester,   53   111.  325,  686,  690  (1845). 

334;    Welsch    r.    BeUerille    Savings  i^  Observe,    however    that    if    the 

Bank,   94    111.    191,    205;    Bucking-      chattels     personal     spec'lfically     be- 
ham  V.  Morrison,  136  111.  437,  446;       queatheil  be  not   of  the  sort  neces- 

n,')9 


§  487]  FUTURE    INTERESTS  [Cn.    XIX 

§  487.  Nature  of  the  future  interest  whether  legal  or  equi- 
table: Is  the  valid  future  interest  in  personal  property  legal 
or  equitable?  In  Welsch  v.  Belleville  Savings  Bank,^"'  Mr. 
Justice  ]\Iulkey  said :  "In  equity  Arthur  Herold  had  a  vested 
remainder  in  the  $4,000  in  question.  We  say  in  equity,  for 
the  whole  doctrine  of  remainders  in  personal  estates  is  a  product 
of  purely  equitable  growth.  Strictly  speaking  it  is  unknown 
to  the  law  as  distinguished  from  equity."  This  language  was 
dictum  in  the  case  and  in  view  of  the  number  of  authorities 
English  and  American  to  the  effect  that  the  future  interest  is 
legal, 1^  the  view  of  the  learned  judge  may  be  doubted. 

§  488.  Whether  vested  or  executory  ^» — Where  a  chattel 
real  is  involved:  The  more  difficult  theoretical  question  is 
whether  the  future  interest  after  a  present  interest  for  life  is 
a  vested  or  an  executory  limitation.-"  So  far  as  we  may  judge 
from  the  language  of  our  Supreme  Court  the  future  interest  in 
case  of  chattels  real  is  to  be  regarded  as  an  executory  limitation 
after  an  absolute  interest  in  the  first  taker. ^i  This  was  cer- 
tainly the  view  upon  which  the  earlier  English  cases  pro- 
ceeded.-- "The  reason  why  there  could  be  no  estate  or  interest 
for  life  in  a  chattel  real,"  says  Professor  Gray,^^  "was  the 
technical  one  that  in  the  eye  of  the  law  a  life  estate  was  greater 

sarily   consumed    in    the    using,   the  Eq.   (S.  C.)   .353n;  Brummet  v.  Bar- 
addition  of  a  power  for  life  in  the  ber,  2  Hill,   (S.  C.)   543;   Rogers  v. 
first  taker  to  sell,  dispose,  or  use  up  Eandall,  2  Speers.   (S.  C.)   38. 
for  his  own  benefit   {post,  §§648  et  I'J  On  vesting   of  legacies   in  gen- 
seq.;  Green  v.  Hewitt,  97  111.  113,  eral,  see  post,  §§  495,  et  scq. 
117,  semble;  Siegwald  v.  Siegwald,  -» For    a    full    treatment    of    this 
37    111.    430;     Welsch    v.    Belleville  question    see    "Future    Interests   in 
Savings    Bank,    94    111.    191,    202;  Personal  Property,"  by  John  Chip- 
Walker   V.   Pritchard,   121   111.   221,  man  Gray,  14  Harv.  Law  Rev.  397. 
229-230),  will  not   prevent   the   sec-  21  Waldo  v.  Cummings,  45  111.  421, 
ond  taker  from  acquiring  what  may  427   (adopting  the  doctrine  of  Man- 
be   left   at   the   first   taker's   death.  ning's    Case    &    Lampert's    Case); 
See  post,  §  726.  Welsch   v.   Belleville   Savings   Bank, 

17  94  111.  191,  204.  94  111.  iDl,  204. 

18  "Future  Interests  in  Personal  22  "Future  Interests  in  Personal 
Property,"  by  John  Chipman  Gray,  Property,"  by  John  Chipman  Gray, 
14  Harv.  Law  Rev.  397,  417;  Gray's  14  Harv.  Law  Rev.  397,  410,  411. 
Rule  against  Perpetuities  §§86,  88;  23  "  Future  Interests  in  Personal 
Hoare  v.  Parker,  2  T.  R.  376;  Property,"  by  .John  Chipman  Gray, 
Anonymous   (1802),   2  Haywood  "(3  14  Harv.  Law  Rev.  397,  402. 

N.  C.)  161;  Duke  v.  Dyches,  2  Strob. 

560 


ClI.    XIX  J     FUTURE   INTERESTS   IN    PERSONAL  PROPERTY  [§489 

than  any  estate  for  years ;  and  tliercfore  as  a  term  for  years, 
even  for  a  tliousand  years,  would  merge  in  a  life  estate,  so  a 
grant  of  a  term  for  years  to  one  for  his  life  purported  to  carry 
something  which  was  greater  than  a  term  for  years  and  which 
carried  merely  a  term  for  years  only  because  that  was  all  there 
was  to  carry,  and  did  carry  tlie  whole  term." 

§  489.  Where  the  limitation  is  of  a  chattel  personal — The 
language  of  our  Supreme  Court:  As  regards  the  future  ii:- 
terest  after  a  limitation  for  life  in  chattels  personal,  it  must 
remain  doubtful,  upon  the  language  of  the  court,  whether  it 
is  vested  or  executory.  In  Waldo  v.  Cummings  ^*  the  court 
said,  in  substance,  that  the  gift  of  a  chattel  ^s  for  life  came 
finally  to  be  held  to  be  a  gift  of  the  use  only,  and  that  the 
remainder  over  was  good  as  an  executory  devise.  This  state- 
ment contradicts  itself.  If  the  first  taker  has  merely  the  use 
for  life,  the  second  taker  must  have  the  absolute  property  and 
so  a  vested  and  not  an  executory  interest.  The  language  of 
Mr.  Justice  Mulkey  in  Welsch  v.  Belleville  Savings  Bank  2«  is, 
therefore,  more  consistent.  "When,"  he  says,  apparently 
speaking  of  a  chattel  personal,  "a  chattel  is  given  to  one  for 
life,  with  a  limitation  over  to  another  the  first  taker  really 
acquires  nothing  but  the  right  to  the  use,  and  such  is  the  recog- 
nized doctrine  at  the  present  time."  In  Glover  v.  Condell^'^ 
we  find  an  apparent  subscription  to  the  statement  from  the 
American  &  English  Encyclopedia  of  Law  -^  to  the  effect  that 
"all  future  interests  in  personalty,  whether  vested  or  con- 
tingent, and  whether  preceded  by  a  prior  interest  or  not,  are 
in  their  nature  executory."  It  certainly  is  a  little  difficult  to 
see  how,  if  the  interest  be  vested,  it  can  also  be  executory  in 
the  ordinary  sense.  Finally,  in  Ilohhie  v.  Ogden  -^  we  find  the 
court  saying  that  "the  principles  applicable  to  the  vesting  of 
real  estate  ai)ply  generally  in  the  case  of  personal  property." 

24  45  111.  421,  427.  chattel  real  for  life  had  the   abso- 

25  The  court  did  not  speak  of  lute  property  and  the  gift  over  was 
chattels  personal  specifically,  but  good  as  an  executory  devise.  Ante, 
such  must  have  been  the  import  of  §  488. 

its   language   since   the   theory  that  2«  94  m.  191,  204,  205. 

the  first  taker  held  the  use  for  life  -'  \Ki  111.  566,  586. 

never    had    any    application    where  -s  Vol.  20,  1st  ed.  9.S0. 

a    chat'tol    real    was    involved.      On  '    20 173  111.  357,  365. 
the    contrary    the    one    who    took    a 

Kales  Fuf.  Int.— 36  561 


§  490]  FUTURE    INTERESTS  [CH.    XIX 

§490.  The  point  actually  decided:  The  language  of  our 
Supreme  Court,  then,  will  hardly  settle  anything  concerning 
■whether  the  future  interest  is  vested  or  executory.  Nor  is  the 
point  involved  in  the  usual  case  of  a  gift  of  a  chattel  personal 
to  A  for  life  and  then  to  B  absolutely.  In  such  a  case  it  does 
not  become  material  whether  B's  interest  is  vested  or  executory. 
Professor  Gray  ^o  has,  however,  pointed  out  two  test  cases 
where  the  question  does  become  vital.  The  second  of  these  is 
this:  Suppose  chattels  personal  are  bequeathed  to  A  for  life 
and  there  is  no  gift  over.  If  A  take  an  absolute  interest,  then, 
there  being  no  gift  over,  the  property  on  A's  death  must  go  to 
his  executor  or  administrator.  If,  however,  A  has  merely  the 
use  of  the  property  for  life  there  will  be  a  reversion  to  the 
testator's  executor.  This  exact  case  was  presented  to  our  Su- 
preme Court  in  Boyd  v.  Strdhari.^'^  It  was  there  held  that  A 
had  only  the  use  for  life  and  that  after  A's  death  the  repre- 
sentatives of  A's  devisor  might  recover  the  property  from  the 
residuary  legatees  of  A.  This  is  in  accord  with  the  view  of  the 
earlier  English  cases.  They  proceeded  upon  the  theory  that 
the  first  taker  for  life  had  only  the  use  for  life  and  that  the 
second  taker  had  the  absolute  property.^^ 

§  491.  Whether  the  future  interest  in  chattels  personal  is 
contingent  upon  the  one  who  takes  it  surviving  the  life  tenant 
or  not:  This  is  the  same  question  which  comes  up  in  regard 
to  remainders  in  real  estate  after  a  life  estate. ^^  Even  though 
the  rules  regarding  the  vesting  of  legacies  apply,  the  interest 
in  personal  property  is  in  futuro  only  for  the  convenience  of 
the  estate — to  accommodate  the  life  estate — and  no  contingency 
of  survivorship  is  found  by  interpretation  unless  it  be  definitely 
expressed. 3*  That  in  effect  makes  the  problem  of  construction 
the  same  whether  real  or  personal  property  is  involved.  Cases 
of  this  sort,  where  only  personal  property  was  involved,  have, 

30 ''Future  Interests  in   Personal  32  "Future   Interests  in  Personal 

Property,"  by  John  Chipman  Gray,  Property,"  hy  John  Chipman  Gray, 

14    Harv.    Law    Eev.    397,    413-414,  14  Harv.  Law.  Eev.  397,  410-411. 

417.  33  Ante,  §§  329  et.  seq. 

3136    111.    355.      For    other    cases  ^*  Post,    §§503    et    seq.     But    see 
in   accord    with    this   see   Professor  In    re    Tritton,    6    Morrell,    Bank- 
Gray's  article,  14  Harvard  Law  Ee-  ruptcy  Cases,  250. 
view,  397,  418,  note  5;  cases  contra 
referred  to  pp.  417-418. 

562 


Cil.    XIX 1     FUTURE   INTERESTS   IN   PERSONAL.  PROPERTY 


§492 


therefore,  already  been  classified  with  the  cases  involving  re- 
mainders of  real  cstate.^^ 

§  492.  Rights  of  those  interested  in  personal  property  "■  in 
which  future  interests  are  created — Enjoyment  in  specie  or 
conversion  and  investment — Where  the  intent  of  the  settlor 
is  expressed  in  words:  The  first  difficulty  to  be  met  with  is 
whether  the  first  taker  for  life  is  to  enjoy  the  property  in  specie, 
or  whether  it  must  be  converted  into  cash,  the  proceeds  invested, 
and  the  income  only  paid  to  the  first  taker  for  life.  This  is  a 
question  which  in  the  first  instance  depends  upon  the  expressed 
intent  of  the  creator  of  the  interests.-'^'  Thus,  where  the  gift 
after  the  limitation  for  life  is  of  "what  is  left,"  it  is  held  that^ 
the  life  tenant  has  the  right  to  enjoy  in  specie,  even  to  consum- 
ing or  using  up  perishable  and  depreciating  personal  property.^s 
So,  if  the  right  be  given  to  the  first  taker  for  life  to  use  up  and 
consume  the  subject-matter  of  the  gift,  he  will  be  entitled  to  it 
in  specie,  even  though  it  be  given  by  a  general  or  residuary 
clause  and  though  the  property  may  be  such  as  must  ordinarily 
be  converted  and  invested  and  the  income  paid  to  the  first  taker 
for  life.39 


35  Strickland  v.  Strickland,  271 
111.  614;  ante,  §§345,  346. 

36  Questions  on  the  subject  mat- 
ter of  this  and  §§  493  and  494  come 
up  most  frequently  in  courts  hav- 
ing probate  jurisdiction  upon  the 
distribution  of  assets  to  the  lega- 
tees. A  draft  of  these  sections  was 
therefore  submitted  to  the  Hon. 
Charles  S.  Cutting,  Judge  of  the 
Probate  Court  of  Cook  County,  ask- 
ing how  far  they  had  stated  the  law 
as  he  was  accustomed  to  lay  it  down 
in  his  court.  In  reply  he  said:  "I 
think  you  may  say,  if  you  care  to, 
that  on  this  subject,  your  statement 
is  quite  in  accord  with  the  rulings 
of  this  court  on  the  same  subject. ' ' 

ST  Buckingham  r.  Morrison,  136 
111.  437,  449. 

38  Welsch  V.  Belleville  Sa\-ing3 
Bank,  94  111.  191,  201-203;  Green 
V.   Hewitt,   97    111.    113,    117;    Sieg- 


wald  I'.  Siegwald,  37  111.  430.  See 
post,  §  648. 

39/71  re  Estate  of  Cashman,  134 
111,  88.  Here  the  gift  was  of  $3,000 
for  life.  This  must  ordinarily  have 
been  invested  by  the  executor  and 
the  income  paid  to  the  legatees  for 
life.  (See  infra.)  The  executor, 
however,  paid  over  the  money  in 
specie  to  the  legatee  and  the  credit 
for  this  amount  in  his  final  account 
was  sustained.  See  also  Sheets  v. 
Wetzel,  39  111.  App.  600. 

It  is  often  an  important  and  dif- 
ficult question  to  determine  whether 
the  first  taker  has  a  right  to  us© 
up  and  consume  the  principal  or  not. 
The  inclination  seems  to  be  to  hold 
that  a  gift  to  the  second  taker  after 
the  first  taker's  life  interest  of  "all 
that  remains"  or  words  of  like 
effect,  is  suflBcient  to  give  the  first 
taker  the  power  to  use  up  and  con- 

163 


§  493]  FUTURE    INTERESTS  [Cll.    XIX 

§  493.  Where  no  intent  has  been  explicitly  indicated  by 
words:  For  the  determination  of  the  result  to  be  reached  in 
this  sort  of  case  certain  rules  have  arisen  founded  upon  the  im- 
plicitly expressed  intention  of  the  testator. 

1.  If  the  bequest  is  of  a  specific  legacy  the  first  taker  is  en- 
titled to  use  the  subject-matter  of  it  in  specie,  and  the  second 
taker  must  receive  the  property  at  its  value  as  lessened  by  any 
depreciation,  which  is  the  result  of  ordinary  use.-*'^ 

2.  Suppose  the  bequest  be  a  general  legacy  and  yet  not  a 
general  residuary  legacy : 

If  the  entire  subject-matter  of  the  general  legacy  be  money— 
viz:  if  the  bequest  be  of  a  general  pecuniary  legacy— then 
the  only  profit  which  the  life  tenant  can  derive  from  its  use 
arises  from  its  investment.^  ^  The  investment  must,  it  is  be- 
lieved, be  in  such  securities  as  trustees  are  allowed  to  hold.'*^ 
If  the  entire  subject-matter  of  the  general  legacy  be  income 
bearing  securities,  not  proper  for  trustees '  investments,  as  shares 
of  stock  in  a  private  corporation,  can  the  stock  be  retained  as 
an  investment  and  the  income  used  by  the  life  tenant,  or  must 
it  be  converted  into  cash  and  invested  in  proper  trustees '  securi- 
ties? If  the  former  is  the  correct  rule,  then  the  result  is  the 
same  as  if  the  stock  had  been  specifically  bequeathed.  If  the 
entire  subject-matter  of  the  general  legacy  be  an  income  pro- 
ducing property  of  a  wasting  or  depreciating  character, ^^  as 
a  general  gift  of  leaseholds  or  live  stock,  can  the  life  tenant  take 
the  profits  of  such  wasting  property  in  specie  or  must  they  be 
converted  and  invested,  and  only  the  net  income  paid  to  the 
life  tenant  ?4'' 

sume  the  principal  fund:    Green  v.  603;    Leslie   v.   Moser,   62   111.   App. 

Hewitt,  97  111.  113,  semble;  Walker  555. 

V.    Pritchard,    121    111.    221 ;    in    re  42  Investment  may  be  in  real  es- 

Estate  of  Cashman,  l34  111.  88.     In  tate  if  the  remaindermen  do  not  ob- 

Welsch  V.   Belleville   Savings   Bank,  ject,  but  title  must  be  taken  to  life 

94  111.  191,  201-202,  a  different  re-  tenant  for  life  with  remainder  over; 

suit   was  reached  upon   the  context  Dee  v.  Dee,  212  111.  338,  355. 

of  the  will  in  other  respects.  *^  For     a     more     particular    enu- 

40  Welseh  v.  Belleville  Savings  meration  of  property  of  this  de- 
Bank,  94  111.  191,  206;  Bucking-  seription,  see  infra  in  this  same 
ham  V.  Morrison,  136  111.  437,  446.  paragraph. 

41  Welseh  V.  Belleville  Savings  44  in  Welseh  v.  Belleville  Savings 
Bank,  94  111.  191,  206  semble;  Bank,  94  111.  191,  206,  the  Court 
Sheets  v.  Wetsel,  39  111.  App.  600,  speaks     as     if     any     general     be- 

564 


Ch.    XIX]     KUTUKE   INTERESTS   IN    PERSONAL   PROPERTY  [§493 

3.  Suppose,  as  is  frequently  the  case,  the  be(iuest  is  a  gen- 
eral residuary  gift  of  personal  estate :  *'' 

In  such  a  case  the  residue  may  consist  of  cash,  personal  prop- 
erty of  a  depreciating  or  wasting  cliaracter  {i.  e.,  property  the 
depreciation  of  which  in  using  is  in  fact  a  consumption  of 
capital,  as  in  the  case  of  leasehold  interests,-*"  annuities,  or  chat- 
tels, such  as  live  stock,^'^  or  wagons,  or  machinery),  chattels 
of  a  permanent  or  non-wasting  character,  such  as  pictures  or 
ornaments,  the  actual  use  of  which  involves  no  necessary  de- 
preciation or  using  up  of  the  thing  itself,  interest  bearing  in- 
vestments proper  for  trustees  to  hold,  and  finally,  improper 
trustees'  investments,  as  stock  in  private  corporations. 

As  to  the  easii,  if  it  is  to  be  enjoyed  by  the  life  tenant  at 
all,  it  must  be  invested  in  proper  trustees'  securities  and  the 
income  only  appropriated  by  the  first  taker.^^  It  seems  en- 
tirely clear  that  the  wasting  or  perishable  property  must  be 
at  once  converted  and  the  proceeds  invested.^^  As  to  chattels 
which  may  be  spoken  of  as  of  a  permanent  or  non-wasting  char- 
acter, as  pictures  or  ornaments,  we  have  no  very  clear  hint  in 
our  Supreme  Court  of  the  result  which  would  be  reached. ^"^  No 
reason  is  perceived  why  they  should  be  converted.  The  in- 
terest bearing  securities  which  are  proper  trustees'  investments, 
the  life  tenant  can  take  the  income  from  as  they  stand.  Those 
which  are  improper  trustees'  investments  must,  it  is  believed, 
be  converted  into  cash  and  invested  in  such  securities  as  it  is 

quest  of  wasting  personal  property,  *«■  Burnett  v.   Lester,  53  111.   325, 

whether      residuary      or      otherwise,  335. 

must  be  converted  and  the  proceeds  *'  Id. 

invested.  **  Welsch     v.     Belleville     Savings 

■»5Welsch     r.     Belleville     Savings  Bank,  94  111.  191,  206. 

Bank,  9-i  111.  191,   (bequest  of  "all  49  Welsch     v.     Belleville     Savings 

my    estate    of    whatever    the    same  Bank,  94  111.   191,  206;    Burnett   r. 

may  consist");    Burnett  v.  Lester,  Lester,    53    111.   325,   335;    Bucking- 

53    111.    325,    (bequest    of   "all   my  ham  v.  Morrison,  136  111.  437,  447; 

personal  property  consisting  of  live  Dickinson    v.    Griggsville    Nat.    Bk., 

stock,   and  also  the  interest  on   all  209  111.  350,  354. 

moneys  and  credits  due  me  at  my  &»  See,      however,      Dickinson      v. 

death");    Buckingham  r.  Morrison,  Griggsville  Nat.   Bk.,   209   111.   350, 

136   111.    437,   447,    (general   residu-  354. 
ary   clause   involved)  ;    Dickinson   v. 
Griggsville   Nat.   Bk.,   209   111.   350, 
354. 

565 


§  493]  FUTURE    INTERESTS  [Ch.    XIX 

proper  for  trustees  to  hold,  and  the  income  from  these  latter 
only,  paid  over  to  the  life  tenant.^^  This  seems  to  be  an  ex- 
tension of  the  rule  which  requires  perishable  or  depreciating 
property  to  be  converted.  The  reason  which  required  a  con- 
version in  this  latter  case,  was  that  unless  such  a  course  were 
pursued,  it  was  certain  that  the  second  taker  could  not  enjoy 
the  property  actually  given  him.  In  the  case  of  improper  trus- 
tees' investments  there  is  no  such  certainty,  but  only  a  danger 
that  the  second  taker  will  not  so  enjoy  the  property  in  question. 
Nevertheless,  the  improper  trustees'  investments  must  be  con- 
verted in  order  to  avoid  such  danger.^2 

One  reason  for  making  a  distinction  between  the  different 
sorts  of  residuary  property  which  must  be  converted,  is  that 
there  are  different  rules  fixing  the  amount  upon  which  the  in- 
come of  the  tenant  for  life  is  to  be  calculated.  Under  the  rule 
of  the  English  cases,  perishable  property  is  valued  at  the  time 
of  the  testator's  death  and  the  life  tenant  is  entitled  to  interest 
on  that  value  from  the  testator's  death.  On  the  other  hand,  so 
much  of  the  personal  estate  as  is  not  in  a  proper  state  of  in- 
vestment at  the  testator's  death,  or  which  has  not  since  become 
so,  must  be  valued  at  a  period  of  one  year  after  his  death,  and 
interest  on  the  value  so  taken,  be  allowed  from  the  testator's 
death  at  the  standard  rate.^^    "In  some  of  the  American  cases," 

51  Buckingham  v.  Morrison,  136  duty  of  the  trustees  to  convert,  in- 
Ill.  437,  448,  semble,  (partnership  vest  and  pay  over  to  the  cestwi  for 
interest  must  be  converted).  life,   the   income,   or   to   permit   the 

52  In  Buckingham  v.  Morrison,  cestui  for  life  to  enjoy  the  profits 
1:56  111.  437,  448,  our  Supreme  Court  of  the  partnership  in  specie.  The 
said:  "Gradually  the  meaning  of  above  language  may  have  applied  to 
'perishable'  property  has  been  en-  the  case  of  conversion  by  trustees 
larged  so  as  to  include  securities  and  it  does  not  appear  that  no  dis- 
of  a  wasting  nature,  or  any  form  tinction  would  have  been  made  be- 
of  investment  of  an  uncertain  kind,  tween  that  case  and  the  case  of  a 
or  attended  with  risk.  The  conver-  legal  life  interest  in  the  residue  of 
sion  and  investment  here  spoken  of  personal  property. 

were    thus    required,    whenever    the  53  Williams    on    Executors,     (7th 

property  so  devised  by  the  testator  Am.  from  9th  Eng.  ed.)    star  page 

v.  as    found   at   his   death   to  be   in-  1248-9.     This  is  what  our  Supreme 

vested  in  ships,  annuities,  leaseholds,  Court  referred  to  in  Buckingham  v. 

railway  shares,  insurance,  canal  and  Morrison,  136  111.  437,  448,  when  it 

gas  stocks,  partnerships,  etc."     The  said:     "In    the   English   cases,    the 

actual  point  involved  in  that  case,  conversion  is  'feigned'  to  have  o«- 

however,    was    whether    it    was    the  curred  at  a  given  period,  that  is  to 

566 


ClI.    XIX j     FUTURE   INTERESTS  IN   PERSONAL   PROPERTY  [§  494 

our  Supreme  Court  said  in  Buckingham  v.  Morrison,^*  "each 
amount  received  from  tlio  conversion  of  the  estate  is  distributed 
between  the  tenant  for  life  and  the  remainder-man,  by  comput- 
ing what  sum  with  interest  at  the  standard  rate  from  the  date 
fixed  for  the  beginning  of  the  income  will  produce  the  amount 
so  received  at  the  time  when  it  is  received,  and  by  investing  tho 
original  sum  so  computed  as  principal,  and  distributing  the 
remainder  as  income." 

There  are  (luestions  also  as  to  when  interest  begins  to  run 
in  favor  of  the  life  tenant,''"'  the  standard  rate  of  interest  to 
be  used,°"  and  whether  the  income  in  favor  of  the  life  tenant 
is  to  be  computed  at  simple  interest  oi-  \\ith  rests.''" 

^  494.  How  may  the  second  taker  protect  his  property  in- 
terest:    In  answering  this,  several  distinctions  must  be  taken: 

1.  If  the  tenant  for  life  is  entitled  to  the  possession  of  the 
property  in  specie — as  in  the  case  of  a  specific  bequest — no 
security  can  be  demanded,  unless  there  is  a  threatened  damage.^* 

2.  If  the  first  taker  is  entitled  to  the  possession  of  the  prop- 
erty in  specie  and  has  power,  either  express  or  because  of  the 
nature  of  the  property,  to  consume  and  use  it  up,  it  is  clear 
that  no  security  can  be  demanded  at  any  time. 

3.  vSuppose,  however,  there  Ls  no  right  to  the  actual  posses- 
sion and  enjoyment  of  the  property  in  specie — as  if  there  is  a 
general  residuary  gift  of  perishable  or  depreciating  property, 
and  no  right  in  the  owner  for  life  to  use  it  up.  ^lust  the  legatee 
for  life,  in  that  case,  before  he  can  receive  the  actual  property 
from  the  executors,  give  security  for  its  proper  conversion  and 
investment  ? 

The  language  of  the  court  in  Burnett  v.  Lester, ^^  and  in 
Welsch  V.  Belleville  Savit^gs  Bank,'^^  certainly  furnishes  some 

say,    a    value    is    placed    upon    the  ^4  136  111.  437,  448. 

estate  at  the  date  of  the  testator's  35  Buckingham    v.    Morrison,    136 

.  death,   or   one  year   thereafter;    the  111.  437,  447. 

estate    is    considered    as    converte<l  5«  Id.  448. 

into  money  at  such  date;  this  N-aluc  "' /rf.  448. 

is  made  a  principal,  upon  which  the  s«  Williams  on  Eieoutora  (7th  Am. 

standard    rate    is    computed    to    de-  from     9th     Eng.     ed.)     star     page 

termine    the    income   to   be    paid    to  1252-3. 

the  tenant   for  life  until  the  trust  59  53  111.  325,  335. 

estate    is     a<.'tually    converted     and  ""^  &4  111.  191,  206. 
invested. ' '    See  also  Cli^ord  v.  Da- 
vis, 22  m.  App.  316. 

567 


§  494]  FUTURE    INTERESTS  [Ch.    XIX 

ground  for  answering  this  question  in  the  affirmative.  In  the 
latter  case  it  almost  seems  to  have  been  made  one  of  the  grounds 
for  the  decision  that  "where  a  testator  gives  to  one  for  life 
a  certain  sum  of  mone^'  out  of  his  estate,  with  a  limitation  over 
to  another,  the  former  has  no  right  to  the  possession  of  the 
money  so  bequeathed.  The  title  thereto  devolves  upon  the  ex- 
ecutor, and  it  is  his  duty  to  see  that  the  same  is  properly  in- 
vested and  that  the  annual  accumulations  are  paid  over  to  the 
tenant  for  life,  and  the  principal  to  the  remainder-man  upon  the 
former 's  decease. "  "^  ^ 

Tletfield  v.  Fowler,^-  which  is  apt  to  be  cited  as  the  strongest 
case  in  support  of  the  position  that  the  probate  court  may  re- 
quire the  life  tenant  to  give  security  as  a  condition  precedent 
to  his  receiving  the  principal,  does  not,  it  is  believed,  support 
such  a  proposition.  In  that  case  the  county  court  had  decreed 
that  the  property  be  turned  over  by  the  executors  upon  the 
legatee  for  life  giving  security.  This  was  reversed  upon  the 
ground  that  by  the  proper  construction  of  the  will  creating  the 
life  interest  the  executors  were  the  trustees  of  the  fund  and  were 
directed  to  hold  the  principal  and  only  pay  the  income  to  the 
life  tenants.^^  The  court  did  say,  however:  "At  least,  the 
exacting  of  reasonable  security,  on  payment  over  of  the  funds, 
for  its  preservation  for  those  entitled  in  remainder  would  seem 
to  be  no  more  than  acting  in  the  line  of  the  faithful  perform- 
ance of  the  trusts  ojE  the  will."  But  this  merel}^  indicates  that 
if  the  trustees  choose  to  pay  over  the  principal  to  the  life  tenant 
before  the  time  of  payment,  in  breach  of  trust,  it  would  have 
only  been  decent  at  least  to  demand  security.  It  does  not  in 
any  way  countenance  the  proposition  that  the  probate  court 
has  any  power  to  exact  security  from  the  life  tenant.^^ 

«i  See   also   Sheets   v.   Wetsel,    39  distributing  to  the  legatee  for  life, 

111.    App.    600,    603.      In    Leslie    v.  the  trustees  had  no  discretion  but  to 

Moser,  62  111.  App.  555,  a  bill  was  distribute    and    could    not    demand 

filed   by   the  life  tenant   to    compel  security. 

the   holders   of   the   fund   to   invest  6*  The  writer  at  first  thought  that 

as  trustees  should.  the  language   of  the   court  in  Het- 

62  60  111.  45,  48.  field    v.    Fowler    went    very    far    to- 

*i3  This  distinguishes  the  case  from  ward    the    establishment    of    a    rule 

Waldo    V.    Cummings,    45    ill.    421,  that   the   Probate    Court   might   re- 

430,  where  the  time  having  come  by  quire   the   legatee   to   give   security. 

the   express   terms    of   the   will    for  Upon   submitting  to  the   Honorable 

568 


ClI.    XiXJ     FUTURE   INTERESTS   IN   PERSONAL  PROPERTY  [§494 

4.  It  has  been  suggest I'd  that,  even  if  the  first  taker  liave  no 
right  to  the  possession  of  the  property  in  specie,  yet  if  the  future 
interest  is  to  take  effect  upon  a  contingency  which  may  or  may 
not  happen,  and  not  merely  after  the  first  taker's  death,  no 
security  need  be  given  by  the  first  taker,  unless  cause  be  shown 
for  so  doing."''  The  result  reached  in  Gannon  v.  Peterson,^^ 
may  indicate  that  such  a  distinction  would  be  sustained.  There 
it  was  held  that  an  executory  devisee  of  real  estate  who  was 
to  take  upon  the  death  of  the  first  taker  without  leaving  issue 
him  surviving,  could  not  maintain  a  bill  to  prevent  waste  against 
the  first  taker  in  ]iossession  unless  there  were  a  strong  probability 


Charles  S.  Cutting,  Judge  of  the 
Probate  Court  of  Cook  County,  the 
text  as  originally  written  dealing 
with  that  case,  the  following  reply 
was  received:  "I  notice  you  cite 
Hetfield  v.  Fowler,  60  111,  45,  as 
holding  that  it  is  proper  for  the 
court  exercising  probate  jurisdic- 
tion to  require  a  bond  as  a  condi- 
tion precedent  to  the  turning  over 
of  the  personal  property  to  the  life 
tenant,  if  I  may  use  that  expres- 
sion. I  have  never  considered  that 
courts  of  probate  had  this  power, 
and  although,  under  the  peculiar  cir- 
cumstances of  the  Hetfield  case  the 
Supreme  Court  sustained  inferen- 
tially  such  a  procedure,  you  will 
note  that  the  case  was  reversed  upon 
other  grounds  and  sent  back;  that 
it  was  not  paid  over  at  all,  hence 
the  question  as  discussed  by  the 
Supreme  Court  was  purely  academic. 
The  money  never  was  paid  over  and 
no  bond  ever  was  given  after  the 
hearing  of  the  case  by  the  Supreme 
Court.  I  know  of  no  other  case  in 
Illinois  that  holds  as  the  Supreme 
Court  seems  to  hold  in  the  Hetfield 
case,  and  I  much  doubt  the  exist- 
ence of  the  rule  as  there  stated,  I 
think  I  would  be  willing  to  aid  in 
tlie  passage  of  a  statute  whieli 
would  give  such  power,  but  as  there 


is  none,  I  doubt  very  much  whether 
the  Probate  Court  possesses  it. 

' '  The  method  of  disposing  of 
many  troublesome  cases  of  that 
kind  has  grown  up  from  the  prac- 
tice in  this  court  where  the  holder 
of  the  intermediate  estate  is  also 
administrator  or  executor.  In  such 
cases  we  approve  the  final  account, 
distribute  all  the  distributable  as- 
sets, find  the  personal  estate  in  the 
hands  of  the  first  taker  and  excuse 
him  from  further  duty.  This  leaves 
him  still  an  officer  of  this  court, 
subject  to  its  orders  and  bound  to 
account,  at  such  times  thereafter 
as  the  court  may  direct,  which 
would  only  be,  of  course,  upon  the 
complaint  of  some  party  in  inter- 
est. At  the  death  of  the  interme- 
diate holder  of  the  personalty,  the 
second  taker  has  two  remedies: 
first,  of  course,  against  the  estate 
of  the  deceased  first  taker,  and 
second,  against  the  bondsmen  of 
tlie  first  taker  who  was  also  admin- 
istrator or  executor.  We  find  in 
practice  that  this  works  well,  and 
tends  strongly  to  preserve  the  estate 
for  its  ultimate  possession." 

G5  Gray 's  Rule  against  Perpetui- 
ties, §90;  2  Woeruer  on  Adminis- 
tration, 2nd  ed.   §  454. 

o<'.  193  111.  372, 


569 


§  494]  FUTURE    INTERESTS  [ClI.    XIX 

that  the  event  would  happen  upon  which  the  gift  over  would 
take  effect. 

5.  Where  real  estate  is  devised  to  A  for  life  wath  power  to 
sell  the  fee  and  A  exercises  the  power  and  converts  the  real 
estate  into  personal  property,  if  the  power  is  merely  to  convert 
and  enjoy  the  proceeds  for  life,  the  life  tenant  must  invest  and 
use  the  income  only  and  is  under  a  fiduciary  obligation  to  pre- 
serve the  principal  for  the  remainderman.'"  Even  if  the  life 
tenant  has  unlimited  power  to  use  up  the  proceeds  of  sale  it  is 
suggested  that,  to  prevent  the  gift  over  being  void  for  uncer- 
tainty, the  life  tenant  should  be  held  to  be  under  a  fiduciary 
obligation  at  least  to  account,  so  that  what  is  left  may  at  all 
times  be  ascertainable.  Where  the  life  tenant  has  a  limited 
power  to  use  the  proceeds  for  a  particular  purpose — as  for  her 
support — it  is  submitted  that  the  life  tenant  should  be  subject 
to  the  fiduciary  obligation  to  account  so  that  what  part  of  the 
principal  is  so  used  and  what  part  remains  may  at  all  times  be 
ascertainable.**^ 

67  Barton  v.  Barton,  283  111.  338. 

68  But  see  Ellis  v.  Flannigan,  279 
111.  93. 


570 


CHAPTER  XX. 

V^ESTING  OF  LEGACIES. 

§  495.  Sense  in  which  "vest"  is  used  when  the  question  of 
the  vesting-  of  legacies  is  considered:  "Vest"  is  not  here  used 
in  the  sense  in  which  the  feudal  land  law  employed  the  term — 
namehj,  as  that  quality  of  a  remainder  which  consisted  in  its 
standing  ready  throughout  its  continuance  to  take  effect  in  pos- 
session whenever  and  liowever  the  preceding  estate  determined.^ 
It  is  used  in  the  more  popular  sense  as  describing  that  quality 
of  an  interest  which  consists  either  in  its  not  being  sub.ject  to 
any  condition  precedent  in  form  to  its  taking  eti'ect  in  posses- 
sion, or  in  its  taking  effect  in  possession  immediately  as  dis- 
tinguished from  the  future.  If  the  legatee  dies  before  the  period 
of  distribution  and  the  question  arises  whether  the  legatee's 
representatives  are  entitled,  the  sole  question  is  whether  the 
legacy  was  contingent  on  the  legatee's  surviving  the  period  of 
distribution.  In  that  case  whether  the  legacy  is  vested  or  not 
is  simply  the  question  whether  the  legacy  is  subject  to  a  con- 
dition precedent  that  the  legatee  must  survive  the  period  of  dis- 
tribution or  not.  If  the  point  is  whether  the  legacy  payable  at 
a  future  time  violates  the  Rule  against  Perpetuities,  it  is  not 
enough  that  the  legacy  is  not  subject  to  a  condition  precedent 
that  the  legatee  survive  the  period  of  distribution.  The  legacy 
would  still  violate  the  rule  if  it  were  a  certain  executory  inter- 
est— that  is,  an  interest  limited  certainly  to  take  effect  in  pos- 
session at  too  remote  a  time,  but  not  subject  to  any  condition 
precedent  of  sui^vivorship  and  hence  transmissible  in  the  mean- 
time upon  the  death  of  the  legatee.  To  render  such  a  legacy 
valid  it  must  appear  to  be  not  only  not  contingent  but  actually 
effective  in  possession  at  once  (or  within  the  time  required  by 
the  Rule  against  Perpetuities)  subject  only  to  a  postponemtMit  as 
to  paj'ment.  Here,  then,  the  distinction  between  a  legacy  which 
is  vested  and  one  which  is  not  is  a  distinction  between  a  legacy 

^Anie,  §29. 

571 


§  496]  FUTURE    INTERESTS  [Ch.    XX 

which  takes  effect  in  possession  at  once  (or  within  the  limits  re- 
quired by  the  Rule  against  Perpetuities)  subject  to  a  postpone- 
ment of  the  payment  merely,  and  one  which  does  not  take  effect 
at  all  till  too  remote  a  time  whether  it  be  contingent  upon  the 
legatee  surviving  that  time  or  not.  Thus,  the  problem  of  whether 
a  legacy  is  vested  or  not  conceals  at  least  two  problems  which  are 
slightly  different.  It  is  highly  desirable,  therefore,  to  deal  with 
the  actual  problems  involved  without  leaning  too  much  on  the 
term  "vest." 

§  496.    A  distinction  must  be  drawn  between  the  case  where 
the  question  is  whether  a  legucy  is  contingent  on  the  legatee 
surviving  a  future  period  of  distribution  and  where  the  same 
question  arises  in  respect  to  legal  remainders  and  springing  in- 
terests in  land:     The  considerations  involved  in  determining 
whether  a  legal  remainder  is  subject  to  a  condition  precedent 
that  the  remainderman  survive  the  life  tenant  have  been  dealt 
with  ante,  §§  329-356.    It  has  been  assumed  that  when  the  re- 
mainders are  equitable  the  courts  will  reach  the  same  conclu- 
sion as  where  they  were  legal,  on  the  principle  that  equity  fol- 
lows the  law.     So  where  the  future  interest  in  land  is  a  spring- 
ing executory  interest  which  vests  in  interest  and  in  possession 
at  a  future  time,  the  question  may  arise  whether  the  one  who 
is  to  take  must  survive  that  tii6e.2     In  the  present  chapter  the 
same  problem  wnth  reference  to  legacies  and  trusts  of  personal 
property  which  are  made  payable  at  a  future  time  is  considered. 
Are  they  contingent  upon  the  legatee's -surviving  the  period  of 
distribution?    Do  they  take  effect  in  possession  at  once  subject 
to  a  postponement  as  to  payment,  or  are  they  actually  not  given 
until  the  future  time? 

The  reason  for  this  separate  treatment  of  a  question  of  con- 
struction which  is  apparently  the  same,  regardless  of  the  sub- 
ject-matter of  the  gift,  is  this:  The  determination  of  whether 
a  legal  remainder  was  subject  to  a  condition  precedent  of  sur- 
vivorship was  decided  in  England  by  the  common  law  courts. 
A  remainder  which  was  so  contingent  was  destructible  by  a  rule 
of  law  defeating  intent.  The  common  law  courts,  therefore, 
leaned  very  strongly  against  finding  any  such  contingency.  They 
would  not  imply  it.  They  insisted  that  it  must  expressly  ap- 
pear.- So  where  legal  springing  and  shifting  future  interests 
2A7ite,  §482.  sAnte,  §§329  et  seq. 

572 


Ch.    XX]  VESTING  OF  I-<EGACIES  [§497 

in  land  were  involved  the  common  law  courts  passed  upon  the 
question  of  construction.  It  is  believed  that  they  required  here, 
as  well  as  in  the  case  of  remainders,  that  any  contingency  that 
the  devisee  survive  the  period  when  the  interest  vested  in  posses- 
sion must  be  definitely  expressed.*  When  the  courts  of  chan- 
cery dealt  with  equitable  remainders  in  land  they  followed  the 
rules  of  the  courts  of  law  and  declined  to  find  by  any  process 
of  implication  or  construction  a  condition  of  survivorship  unless 
it  was  explicitly  expressed.^  The  question  whether  a  legacy  pay- 
able at  a  future  time  was  contingent  upon  the  legatee's  surviv- 
ing that  time  came  up  in  the  chancery  court  in  suits  for  the 
administration  of  deceased's  estates.  In  these  cases  the  chancery 
adopted  and  followed  its  own  rules,  based  to  some  extent,  upon 
the  civil  law.**  It  happened,  therefore,  that  the  results  reached 
rested  upon  some  rules  and  considerations  which  were  not  recog- 
nized as  effective  by  the  common  law  courts  in  dealing  with 
future  interests  in  land.  So  where  equitable  interests  in  per- 
sonal property  were  involved,  the  court  of  chancery  followed 
its  own  rules  applicable  to  the  cases  of  legacies.  The  result  has 
been,  and  still  is,  that  the  cases  dealing  with  whether  a  legacy 
or  an  equitable  interest  in  personalty  payable  at  a  future  time 
is  contingent  upon  the  legatee  surviving  that  time  must  be  con- 
sidered apart  from  similar  questions  as  to  legal  or  equitable 
interests  in  land  by  way  of  remainder. 

TITLE    I. 
'  LEGACIES  CHAEGED  ON  LAND. 

§  497.  A  distinction  must  be  observed  between  the  cases 
where  the  question  is  whether  a  legacy  payable  out  of  the  per- 
sonal estate  is  conting-ent  on  the  legatee  surviving  at  a  future 
period  of  distribution  and  where  the  same  question  arises  in 
respect  to  a  legacy  charged  on  land  and  actually  paid  out  of 
the  proceeds  of  the  land:  Where  a  legacy  payable  in  futuro 
was  charged  on  land  and  actually  paid  out  of  the  proceeds  of 

*  Ante,  %%   Z29  et  seq.  property     are     involved,     see     post, 

5  As    to    the    position    which    our  §  528. 

courts   have   taken    where    equitable  6  Leeming  v.  Sherratt,  2  Hare,  14 

interests    not   analogous   to    remain-  (1842)  ;    McCartney  r.  Osburn,   118 

ders  in  land  or  equitable  interests  in  III.  403,  420. 
a  mixed   fund  of  real   and  personal 

573 


§  497]  FUTURE    INTERESTS  [Ch.    XX 

the  land,  the  determination  of  whether  the  legacy  was  contingent 
on  the  legatee  surviving  the  period  of  distribution  was  subject 
to  the  rules  enforced  by  the  common  law  courts.     Even  where 
the  question  was  decided  by  the  chancery  court  in  the  adminis- 
tration of  estates  that  court  purported  to  follow  the  decisions 
of  the  common  law  courtsJ     The  latter  seem  to  have  deter- 
mined that  a  legacy  not  payable  till  a  future  time  was  regu- 
larly contingent  upon  the  legatee  surviving  the  date  of  pay- 
ment.   Even  when  the  legacy  was  "to  A,  to  he  paid  at  twenty- 
one,"  so  that  it  would  not,  as  a  legacy  payable  out  of  personal 
property,  be  contingent  on  A's  reaching  twenty-one,  it  was  held 
to  be  contingent  on  A's  surviving  twenty-one  if  and  so  far  as 
the  legacy  was  paid  out  of  the  proceeds  of  real  estate  upon 
which  it  was  charged.^    This  result  was  recognized  as  a  proper 
one  by  our  Supreme  Court  in  McCartney  v.  Oshurii.^     Even 
when  interest  was  given  in  the  meantime  upon  a  legacy  charged 
on  land  the  legacy,  so  far  as  it  was  actually  paid  out  of  the 
land,  was  held  by  the  English  common  law  courts  to  be  con- 
tingent upon  the  legatee  surviving  the  period  of  distribution.!" 
It  was  held,  however,  that  where  payment  was  "postponed  until 
the  happening  of  an  event  not  referable  to  the  person  of  the 
party  to  be  benefited,  but  to  the  circumstances  of  the  estate  out 
of  which  the  portion  or  legacy  is  to  be  paid,  such  as  the  death 
of  a  tenant  for  life,"  the  legacy  was  not  contingent  upon  the 
legatee  surviving  the  date  of  payment.^^     This  was  recognized 
and  applied  in  Carper  v.  Crowl  ^^  and  a  legacy  payable  out  of 
land  after  the  death  of  the  widow,  who  had  a  life  estate  in  it, 

7  Per  Lord  Hardwicke,  C,  in  n  Per  Lord  Cottenliam,  C,  in  Ev- 
Prowse  V.  Abingdon,  1  Atk,  482,  ans  v.  Scott,  1  H.  L.  C.  43,  57 
486  (1738).  See  accord,  Pearce  i;.  (1847).  See  also  1  Jarman  on  Wills 
Loman,  3  Ves.  135  ^1796).  (6th    ed.    Bigelow)    star   page    792. 

8  Yates  V.  Phettiplace,  2  Vern.  Same  passage  quoted  with  approval 
416;  Chandos  v.  Talbot,  2  P.  Wms.  in  Powers  v.  Egelhoff,  56  111.  App. 
601.  606;    Theobald    on    Wills,    2nd    ed. 

» 118  111.  403,  420.     In  Powers  v.       407     (same     statement)  ;     King     v. 
Egelhoff,  56  111.  App.  606,  the  court       Withers,  2  Eq.  Cas.  Ab.  656,  pi.  10, 
seizes   upon    the   rule    to    aid   it   in       Cas.  temp.  Talb.  117;  5  Gray 's  Cases 
holding  the  legacy  contingent  upon       on  Prop.,  1st  ed.  266. 
the  legatee's  reaching  twenty-five.  12  149  111.  465,  482,  485. 

10  Gawler  v.  Standerwiek,  2  Cox 
15.  But  see  Murkin  v.  Phillipson, 
3  M.  &  K.  257. 

574 


Ch.    XX  j  VESTING  OP  LEGACIES  [§  498 

was  not  contingent  on  the  legatee  surviving  the  date  of  pay- 
ment. 

The  different  rules  as  to  the  contingency  of  legacies  payable 
out  of  personalty  and  those  charged  upon,  and  actually  paid 
out  of,  land,  might  result  in  the  same  legacy  being  non-con- 
tingent so  far  as  it  was  payable  out  of  personalty  and  contingent 
on  the  legatee  surviving  the  period  of  distribution  so  far  as  it 
was  payable  out  of  the  proceeds  of  land  on  which  it  was 
charged. ^•' 

Where  realty  is  devised  upon  trust  to  be  converted  and  lega- 
cies paid  out  of  the  proceeds,  or  the  proceeds  divided,  the  lega- 
cies are  not  payable  out  of,  or  charged  upon,  realty.  The 
directions  to  sell  amount  to  an  equitable  conversion  and  the 
legacy  becomes  payable  out  of  personalty.^^  The  rules  applicable 
to  the  vesting  of  legacies  payable  out  of  personalty  ^^'  therefore 
apply.'*' 

TITLE  II. 
LEGACIES  ACTUALLY  PAID  OUT  OF  PERSONAL  PROPERTY. 

§  498.  The  results  reached  by  the  courts  are  for  the  most 
part  merely  suggestive  as  to  what  considerations  will  furnish 
a  substantial  inference  for  or  against  the  vesting-  of  the  legacy : 

It  is  improper  to  dogmatize  about  the  results  reached  by  courts 
in  determining  whether  or  not  a  legacy  is  contingent  upon  the 
legatee  surviving  the  period  of  distribution.  Each  case  depends 
upon  a  balance  of  all  the  considerations  for  and  against  the 
presence  of  the  contingency  and  most  cases  will  present  a  some- 
what different  alignment  of  these  considerations.  All  the  writer 
can  do  is  to  classify  the  elements  of  context  which  make  for  and 
against  the  contingency  and  indicate  as  far  as  possible  the 
weight  which  the  courts  give  to  each.  The  process  of  balancing 
these  considerations  must  be  done  by  the  practitioner  in  each 


i3Chandos  v.   Talbot,  2  P.  Wms.  is  Theobald  on  Wills,  2nd  ed.  407; 

601.  In  re  Hart's  Trusts,   3  DeG.   &  J., 

!•»  Lash  V.  Lash,  209  111.  595,  604;  195. 

Ebey    v.    Adams,    135    111.    80,    85;  ic  geofield  v.  Olcott,  120  111.  362; 

Dorsey  v.  Dodson,  104  111.  App.  5S9,  Hawkins  v.  Bohling,  168  111.  214. 
592. 


§  499]  FUTURE    INTERESTS  [Ch.    XX 

ease  as  it  arises.  The  writer  has,  however,  at  the  end  of  this 
chapter  uudertaken  to  present  a  few  leading  cases  and  to  ana- 
lyze them  for  the  reader  for  the  pui*pose  of  illustrating  the 
process  of  balancing  all  the  elements  of  a  context  for  and  against 
the  contingency  of  the  gift.^" 

Topic  1. 

Where  There  is  a  Direct  Gift  With  a  Superadded  Direction 
TO  Pay  at  a  Future  Time. 

§  499.  In  these  cases  the  context  justifies  the  prima  facie 
inference  that  the  g:ift  is  immediate  subject  only  to  a  post- 
ponement as  to  pajonent  and  is  not  contingent  upon  the  legatee 
surviving  the  period  of  distribution:  If,  for  instance,  a  legacy 
be  bequeathed  "to  A,  to  he  paid  at  twenty-one,"  the  gift  is  con- 
strued to  take  etfect  at  once  with  merely  a  postponed  enjoyment. 
The  legacy  is,  therefore,  said  to  vest  immediately  upon  the  tes- 
tator's death. IS    This  follows  the  well  settled  rule  of  the  English 


cases 


19 


Howe  V.  Hodge  ^'^  presents  an  example  of  such  a  context.  In 
that  case  the  testator  devised  the  residue  of  his  estate,  consist- 
ing of  reversions  after  life  interests  created  by  previous  clauses 
of  the  will,  real  estate  in  fee  not  subject  to  any  estate  for  life  or 
years,  and  personal  property,  to  his  executors  in  trust  for  the 
following  purposes:  Certain  real  estate  "shall  be  sold,  and  the 
proceeds  arising  from  such  sales,  and  all  moneys  coming  into 
their  hands  under  this  paragraph,  shall  be  invested  and  kept 
secured  on  farm  lands,  the  interest  being  yearly  turned  into 
principal,  and  the  fund  thus  arising  shall  be  divided  among  all 
my  grandchildren,  as  they  shall  respectively  arrive  at  the  age 
of  thirty  (30)  years.  *  *  *  y[y  intention  in  disposing  of 
the  property  named  in  this  paragraph  is  to  divide  it  equally 
among  all  my  grandchildren."  A  decree  in  the  lower  court 
found  this  gift  to  the  grandchildren  void  for  remoteness.     This 

17  Post,  §  527.  10  Theobald     on     Wills,     2nd     ed. 

isRuffin   V.   Farmer,   72   111.    615.  410. 

See    also   Sheets  v.   Wetsel,   39   111.  20  152  111.  252.    See  also  111.  Land 

App.  600;  Bowerman  v.  Sessel,  191  and  Loan  Co.  v.  Bonner,  75  111.  315. 

111.    651;    Eldred   v.    Meek,   183    111.  But    compare    Pitzel    v.    Schneider, 

26,  37,  semble;  Ingraham  v.  Ingra-  216   111.   87,   and  Reid   v.   Voorhees, 

ham,   169' 111.   432,  453;    McCartney  216  111.236. 
V.  Osburn,  118  111.  403,  419-422. 

576 


ClI.    XX  J  VESTING  OF  LEGACIES  |  S  500 

our  Supreme  Court  reversed  upon  the  ground  that  tlie  gift  to 
the  grandchildren  was  vested  at  once  upon  tlie  testator's  death, 
with  only  the  right  to  possession  postponed.  This  result  was 
founded  wholly  upon  the  ground  that,  by  the  last  sentence  of 
the  residuary  clause  of  the  will  above  (|uoted,  there  was  a  present 
gift  to  the  grandchildren,  and  that  the  direction  to  divide  among 
the  grandchildren  as  they  should  respectively  arrive  at  the  age 
of  thirty  years,  had  reference  only  to  the  distribution  or  the 
taking  ett'eet  of  the  interests  in  possession.  Of  course  it  made 
no  difference  that  the  direct  gift  to  the  grandchildren  came  after 
instead  of  before  the  clause  postponing  the  possession  of  the 
interest.^' 

So,  in  Armstrong  v.  Barber-'^  and  Mettler  v.  Warner,--^  where 
there  was  a  direct  gift  to  trustees  with  a  direction  that  the  trust 
was  to  continue  for  a  certain  number  of  years  from  the  probate 
of  the  will,  the  gift  to  the  trustees  was  clearly  immediate  and 
did  not  violate  the  Rule  against  Perpetuities. 

Suppose  a  legal  or  equitable  life  estate  is  created  in  A  with 
a  direct  gift  after  the  death  of  A  to  B  and  C,  with  a  direction 
to  the  executor  or  the  trustee  to  convert  and  divide  or  distribute 
after  the  death  of  A.  Here  the  fact  that  the  gift  is  only  to  take 
effect  in  possession  after  A's  life  estate  does  not  make  it  con- 
tingent because  the  postponement  is  inevitable  considering  the 
position  of  the  estate.  The  case  must,  therefore,  be  treated  as  if 
■  there  were  a  direct  gift  to  B  and  ('  with  a  direction  to  divide 
at  a  future  time,  thus  giving  B  and  C  a  presently  vested  interest 
with  a  postponed  enjoyment.  Such  has  been  the  holding  in  this 
state,-"*  and  elsewhere,-'' 

Topic  2. 

Where  the  Only  Gift  is  to  Be  Found  in  the  Direction  to 

Pay  or  Divide  at  a  Future  Time. 

§  500.  In  such  cases  the  context  justifies  the  prima  facie 
inference  that  the  legacy  is  contingent  upon  the  legatee  sur- 

■^i  Theobald  on  Wills,  2nd  ed.  410;  5H8;    Hempstead  v.  Dickson,  20  111. 

1   Jarman   on  Wills    (6tli   ed.   Bio;o-  193;    Kelly   v.    Gonee,   -49   111.    Ajip. 

low),  star  page  796.  82.      Banta    v.   Boyd,    118    111.    186, 

2-*  239  111.  389,  397.  post,  §  505,  seems  contra. 

23  243  111.  600,  608.  -^  Collier   v.  i'.rimesey,  36  Oh.  St. 

24  Chapman    v.    Cheney,    191    111.  17. 
574;    NicoU    v.    Scott,    99    111.    529, 

Kales  Fut.  Int. — 37  577 


j;  500 J 


FLTUKE    INTERESTS 


[Ch.  XX 


viving  the  date  of  payment:  This  has  been  constantly  recog- 
nized as  the  \vell  settled  lule.-''  It  has  been  applied  where  the 
time  of  distribution  is  sure  to  arrive  and  is  unconnected  with 
the  legatee — such  as  the  expiration  of  a  given  number  of  years.-'^ 
It  applies  also  where  the  legacy  is  contained  only  in  the  direc- 
tion to  pay  to  the  legatee  at  a  certain  age.  Thus,  where  the 
legacy  is  "to  A  at  twenty-one,"  it  is  contingent  upon  A's  reach- 
ing that  age.-'"' 

It  has  been  asserted  that  the  general  rule  which  makes  a  legacy 
contained  only  in  the  direction  to  pay  at  a  future  time  con- 
tingent "is  usually  applied  where  the  gift  is  to  a  class,  but  the 
court  will  hesitate  in  applying  it  where  the  gift  is  to  legatees  by 
name.  "2*^     It  is  difficult  to  deny  this  carefully  phrased  state- 


26  Dee  V.  Dee,  212  111.  338,  352, 
353;  Clark  v.  Shawen,  190  111.  47, 
56;  Knight  v.  Pottgieser,  176  111. 
368,  373-374;  Duekcr  v.  Burnham, 
146  111.  9,  24;  McCartney  v.  Osburn, 
118  111.  403,  419;  Hobbie  v.  Ogden, 
178  111.  357,  366;  Schukneeht  v. 
Sehultz,  212  111.  43;  Armstrong  v. 
Barber,  239  111.  389,  399;  Dime  Sav- 
ings Co.  V.  Watson,  254  111.  419, 
425;  Meldahl  v.  Wallace,  270  111. 
220,  231  (semble);  O'Hare  v. 
Johnston,  273  111.  458,  467;  Walker 
r.  Walker,  283  111.  11. 

27  Walker  v.  Walker,  283  111.  11; 
Reid  V.  Voorhees,  216  111.  236  (dis- 
position of  the  principal  "thirty 
years  after  my  death ' ' — held  contin- 
gent and  void) ;  Smell  v.  Dee,  2 
Salk.  415  (legacy  "to  the  two  chil- 
dren of  J.  S.  at  the  end  of  ten  years 
after  my' decease") ;  Bruce  v.  Charl- 
ton, 13  Sim.  65  (legacy  "at  the 
expiration  of  ten  years  from  the 
time  of  my  death ")  ;  Be  Eve,  93 
L.  T.  R.  23o  (legacy  payable  "six 
years  after  my  decease");  Be 
Cartledge,  29  Beav.  583  (legacy  of 
£1000  payable  immediately  after 
daughter's  death);  Hall  v.  Terry, 
1  Atk.  502  (legacy  payable  six 
months    after    a    certain    reversion 


came  into  possession)  ;  Kountz's 
Estate,  213  Pa.  390,  399  (gift  ten 
years  after  the  testator's  youngest 
grandchild  reached  twenty-one  to  the 
testator 's  grandchildren  held  contin- 
gent) ;  Andrews  v.  Lincoln,  95  Me. 
541  (gift  thirty  years  after  testa- 
tor's death  to  two  named  grand- 
children in  esse  at  the  testator's 
death,  but  if  they  died  within  the 
thirty  year  period  then  to  their  is- 
sue at  the  termination  of  said 
period — held  gift  to  the  issue  of 
the  grandchildren  contingent  and 
void)  ;  Anderson  v.  Menefee,  174 
S.  W.  904  (Tex.)  (disposition  of 
residue  thirty  years  from  testator 's 
death  to  children  or  heirs  of  the 
body  of  such  as  die  before  thai 
time). 

28  Bennett  v.  Bennett,  217  111.  434; 
66  111.  App.  28;  Eldred  v.  Meek, 
183  111.  26;  Pitzel  v.  Schneider,  216 
111.  87 ;  Howe  v.  Hodge,  152  111.  252, 
275-277;  Cassem  v.  Kennedy,  147  111. 
660;  Schofield  v.  Olcott,  120  111. 
362,  372;  McCartney  v.  Osburn,  118 
111.  403,  421,  423;  Powers  v.  Egel- 
hoff,  56  111.  App.  606. 

29  Armstrong  v.  Barber,  239  111. 
389,  400.  In  Dime  Savings  Bank  v. 
Watson,  254  111.  419,  424,  the  court 


578 


Ch.    XX]  VESTING  OF  LEGACIES  fS-'lf^l 

ment,  and  yet  it  may  easily  be  misleading.  The  fact  is,  the 
general  rule  is  constantly  applied  where  the  legacy  is  to  one 
by  name  as  well  as  where  the  gift  is  to  a  class.  It  is  sub- 
mitted that  the  circumstance  that  the  gift  is  to  a  class  does 
not  give  rise  to  any  substantial  inference  in  favor  of  the  con- 
tingency of  the  gift.""  Of  course,  where  the  only  gift  is  con- 
tained in  the  direction  to  pay  to  A  "when"  or  "if"  he  reaches 
twenty-one,  or  "to  such  ehildren  of  A  as  reach  twenty-one,"  the 
context  fortifies  the  inference,  which  arises  according  to  the 
rule,  that  the  legacy  is  contingent  upon  the  legatee  surviving  the 
age  in  question.^i  The  context  may  even  more  clearly  require 
the  gift  to  be  contingent. ■'^- 

§  501.  Cases  where  a  difficulty  arises  in  determininpf 
whether  there  is  a  direct  gift  with  a  superadded  direction  to 
pay  at  a  future  time,  or  a  gift  contained  only  in  the  direction 
to  pay  at  a  future  time:  In  Furriess  v.  Pox'^-^  a  testator  be- 
queathed to  his  grandson  "five  hundred  dollars,  if  he  shall 
arrive  to  the  age  of  twenty-one  years,  then  to  be  paid  over  to 
him  by  my  executor  hereinafter  named."  It  was  held  that  the 
words  "if  he  shall  arrive  to  the  age  of  twenty-one  years"  re- 
lated to  what  followed  and  not  to  what  went  before,  so  that  the 
gift  was  "to  John  William  Furness;  to  be  paid  to  him  if  he 
reached  twenty-one:"  Hence  the  gift  was  vested  at  once  sub- 
ject only  to  a  postponement.  This  case  at  least  indicates  that 
where  there  is  doubt  the  court  will  adopt  the  construction  which 
vests  the  legacy.^^ 

In  two  eases,  however,  our  Supreme  Court  seems  to  have  over- 
emphasized the  application  of  the  it  was  practically  conceded  that, 
general  rule  where  the  gift  was  to  a  apart  from  the  effect  of  other 
class.  clauses    {post,    §519),    the    gift    to 

30  Post,  §  523.  the   testator  's   children,   which    read 

31  In  Howe  v.  Hodge,  152  111.  252,  "when  my  children,  or  the  surviv- 
275-277,  we  have  the  very  carefully  ors,  shall  arrive  at  the  age  of  thirty 
considered  dMum  of  the  court  that  years,  if  my  wife  still  survive,  the 
the  gift  to  trustees  upon  trust  to  sell  remainder  of  said  two-thirds  of  my 
and  divide  the  fund  arising  ' '  among  property  shall  go  to  and  vest  in  my 
all  my  grandchildren,  as  they  shall  said  children  equally,"  conferred  a 
respectively    arrive    at    the    age    of       contingent  future  interest. 

thirty    (."^O)    years,"    gives    to    the  ■^s  1  Cush.    (Mass.)    \M. 

grandchildren   only   an   interest   con-  ^^  See    Jones    r.    Miller.    2S:i    111. 

tingent  upon  their  attaining  thirty.  348,  356. 

32  In   Lunt   I'.   Lunt,   108   111.   'Ml, 

579 


§  502]  Fl'TURE    INTERESTS  [Gh.    XX 

looked  the  fact  that  there  was  a  direct  gift  to  the  legatee  with 
merely  a  superadded  direction  as  to  payment.  In  Bennett  v^ 
Bennett  ^^  there  was  a  bequest  to  trustees  for  the  "benefit  of  my 
son.  Charles  W.  Bennett,  *  *  *  as  hereinafter  provided," 
Then  followed  the  provision  that  the  income  was  to  be  paid  him 
till  he  reached  forty  and  the  principal  "shall  then  become  his 
absolutely,"  with  a  gift  over  if  he  died  before  the  period  of  dis- 
tribution. The  only  question  was  whether  the  trust  could  be 
terminated  by  the  son  at  once  and  before  he  reached  forty.  The 
gift  over  ^^  as  well  as  the  refusal  of  the  trustee  to  permit  the 
termination  of  the  trust  ^"^  prevented  the  result  M^hich  the  son 
sought.  The  opinion  of  the  court,  however,  seems  to  be  based 
upon  the  fact  that  because  the  only  gift  was  in  a  direction  to  pay 
at  a  future  time,  it  was  contingent  upon  the  legatee's  surviving 
the  period  of  distribution.  It  is  submitted  that  so  much  of  the 
opinion  is  misleading.  In  Kingman  v.  Harmon  '^^  the  testator 
provided  that  all  of  his  real  estate  "be  reserved  for  my  children, 
and  be  divided  equally  among  them  when  the  youngest  attains 
the  age  of  twenty-one  years."  The  court  here  applied  the  rule 
relating  to  legacies  that  where  the  only  gift  was  contained  in  the 
direction  to  ^aj  at  a  future  time  the  legacy  was  contingent  on 
the  legatee  surviving  that  time.  The  court  entirely  overlooked 
the  fact  that  there  was  in  the  words  "be  reserved  for  my  chil- 
dren," a  fair  basis  for  a  direct  gift  with  a  superadded  direction 
to  divide  at  a  future  time. 

Topic  3. 

Whether  the  Direction  to  Pay  at  the  Future  Time  is  For 
Reasons  Personal  to  the  Legatee  or  Merely  For  the  Con- 
venience OF  the  Estate. 

§  502.  This  is  important  in  determining  whether  or  not  the 
legacy  is  contingent:  When  the  only  gift  is  in  the  direction 
to  pay  or  divide  at  a  future  time  the  fact  that  the  payment  ap- 
pears to  be  deferred  for  reasons  which  are  personal  to  the  lega- 
tee— for  instance,  till  he  reaches  a  certain  age — is  an  added  con- 
sideration in  favor  of  the  contingency  of  the  gift.    On  the  other 

3s  217  111.  ,434.  -Ai  Post,  §§  732  et  seq.       ■ 

3«  Post,  §  .526.  38  131  111.  171. 

580 


Ch.    XX]  VESTING  OP  LEGACIES  [§  503 

hand,  oui-  Supreme  Court,  following  the  statements  of  Jarman  '•^'•> 
and  Theobald  ^"  has  actually  announced  that  "even  though  there 
be  no  other  gift  than  in  the  direction  to  pay  or  distribute  in 
futuro,  yet,  if  such  payment  or  distribution  appear  to  be  post- 
poned for  the  convenience  of  the  fund  or  property,  as  where 
the  future  gift  is  postponed  to  let  in  some  other  interest,  for  in- 
stance, if  there  is  a  prior  gift  for  life,  or  a  bequest  to  trustees 
to  pay  debts,  and  a  direction  to  pay  upon  the  decease  of  the 
legatee  for  life,  or  after  payment  of  debts,  the  gift  in  remainder 
vests  at  once,  and  will  not  be  deferred  until  the  period  in  ques- 
tion." 

^  503.  Cases  where  the  only  ^ft  was  contained  in  the  direc- 
tion to  convert  and  divide  after  a  life  estate  and  where  the 
postponement  was  held  to  be  merely  for  the  convenience  of  the 
estate:  In  IScofield  v.  Olcott,*^  there  was  a  devise  of  real  and 
personal  property  to  trustees  to  pay  the  rents  and  profits  thereof 
to  the  wife  for  life,  and,  after  her  death,  to  convert  sufficient 
to  pay  certain  bequests.  The  testator  then  proceeded:  "I 
order  and  direct  my  said  trustees  to  convey,  assign,  and  deliver 
all  the  rest  and  residue  of  my  estate  to  my  said  son,  William, 
as  soon  as  said  legacies  have  been  fully  paid."  William  died 
before  the  life  tenant.  After  the  death  o^  the  life  tenant,  the 
trustee  having  a  balance  in  his  hands  after  paying  the  legacies, 
a  contest  arose  between  the  heirs  of  the  testator  who  were  his 
brothers  and  sisters,  and  the  devisees  of  the  mother  and  only 
heir  of  William.  A'  decree  for  the  latter  was  affirmed.  As  to 
the  proceeds  of  the  conversion,  the  court  took  the  position  that 
the  will  bequeathed  a  legacy  out  of  personal  estate.  The  court 
also  considered  whether  William's  interest  w^as  vested  upon  the 
tlieory  that  "there  was  no  original  gift  to  him,  but  only  a  di- 
rection to  pay,  or  to  'convey,  assign  and  deliver'  at  a  future 
time."  Looking  at  the  will  this  way  they  were  satisfied  that 
William's  legacy  vested  at  once  upon  the  testator's  death.  The 
general  rule  was  repeated  "that  when  there  is  no  original  gift, 
but  only  a  direction  to  pay  at  a  future  time,  the  vesting  will 
he  postponed  till  after  that  time."  The  court  then  went  on 
to   stilt (•    li-oiu    .l;irni;ni    and   Tlieol);il(l    the   (inalitication   of   the 

39  Jaiman  on  Wills  (6th  cd.  Bige-  *"  Theobald  on  Wills,  2nd  ed.  412. 

low),  star  page  798.  "i  120  111.  362. 

581 


§  503]  FUTURE    INTERESTS  [Ch.    XX 

general  rule  given  in  §  502  and  to  apply  it  to  the  limitations  in 
question. 

So,  in  Hawkins  r.  Bohling,^'-  there  Avas  a  devise  upon  trust 
for  the  husband  for  life,  with  a  direction  that  what  real  estate 
remained  unsold  at  the  time  of  the  husband's  death  be  sold 
"and  the  proceeds  of  said  sale  to  be  divided,  share  and  share 
alike,''  betAveen  Ettie  Bohling  and  Margaret  Craig.  Margaret 
Craig  died  before  the  death  of  the  life  tenant.  After  the  death  of 
the  life  tenant  the  heir  of  the  testatrix  filed  a  bill  for  partition. 
This  was  dismissed  and  the  decree  was  affirmed.  Again  the 
contention  was  made  that  "here  there  was  no  original  gift  to 
Mrs.  Craig,  but  only  a  direction  to  sell  and  pay  over  to  her 
after  the  death  of  the  life  tenant.  The  court,  however,  relying 
upon  Scofield  v.  Olcott,  met  this  suggestion  by  saying,  "It  ap- 
pears by  the  will  that  the  payment  or  distribution  was  post- 
poned for  the  convenience  of  the  estate — tliat  is,  to  let  in  the 
prior  interest  given  to  the  husband — and  was  not  postponed 
for  reasons  personal  to  the  legatee,  and  that  in  such  eases  the 
interest  will  vest  on  the  death  of  the  testator."  ^^ 

In  Ducker  v.  Burnham,'^^  the  testator  devised  to  his  wife  for 
life  and  on  her  death  the  estate  then  remaining  to  "be  by  my 
surviving  executor  equally  divided  between  my  said  five  chil- 
dren." The  interest  of  the  children  was  held  to  be  vested  be- 
cause the  division  was  postponed  only  for  the  convenience  of 
the  property. 

In  Knight  v.  Pottgieser,^^  there  was  a  devise  to  the  testator's 
wife  for  life  and  upon  her  death  "the  same  to  go  to  and  be 
divided  amongst  my  children  and  their  descendants  in  equal 
shares."  Here,  also,  it  was  held  that  the  children  took  vested 
iiiterests,  because,  though  the  gift  arose  wholly  out  of  the  direc- 
tion to  distribute  in  futuro,  yet  such  distribution  was  deferred 
merely  because  of  the  presence  of  the  life  estate  and  not  for  any 
reasons  personal  to  the  legatee. 

In  Dee  v.  Dee,^^'  after  a  gift  to  the  testator's  wife  for  life 

42  168  111.  214.  44  146  111.  9,  24. 

43  This  rule  is  repeated  again   in  45  176  111.  368,  373. 

Harvard   College  v.  Balch,  171    111.  40  212  111.338,352-354,    See,  also, 

275,  282,  aemhle.     Sec  also  Kflly   /•.  Clark   v.    Shawen,    190    111.   47,   56; 

Gonce,  49  111.  App.  82,  89-90;   Dor-  Grimmer  v.  Frioderieh,  164  111.  245, 

scy  V.  Dodson,  104  111.  App.  589.  248;    Carper  v.  Crowl,  149  111.  465, 

582 


Ch.    XXJ  VESTING  OF  I.KGACIES  I  §  '"304 

of  all  real  and  personal  proix-rly,  tlie  will  piovidcd  :  •  Alter  the 
decrase  of  my  said  wife  all  my  property,  both  real  and  personal, 
shall  be  divided  between  all  of  my  ehildren."  It  was  held  that 
the  children  took  vested  interests  because  the  postponement  was 
merely  for  the  convenience  of  the  estate  and  not  for  reasons 
personal  to  the  legatee.^' 

In  these  cases  the  fact  that  the  gift  is  expressed  to  take  effect 
"on  the  death"  of  the  life  tenant  ought  to  be,  and  no  doubt  is, 
negligible  as  the  basis  of  an  inference  in  favor  of  contingency,''^ 
but  on  occasion  it  is  put  forward  as  justifying  such  an  in- 
ference.^'* 

§  504.  Similar  cases  which  hold,  or  appear  to  hold,  the 
legacy  contingent  upon  the  legatee  surviving  the  life  tenant — 
People  V.  Jennings:  •''"  The  will  in  that  case  contained  a  direc- 
tion to  executors  to  sell  "as  soon  after  my  death  as  convenient." 
It  then  provided  that  "should  there  be  anything  remaining  after 
paying  my  just  debts,  funeral  expenses,  Ijequests  and  necessary 
expenses  of  the  settlement  of  my  estate,  that  the  same  may  be 
equally  divided  between  my  following  named  children  *  *  * 
[naming  four]  and  in  case  of  the  death  of  either  or  all  of  my 
last  named  children,  then  to  be  divided  among  their  children,  the 
child,  or  children  of  each  one  taking  their  deceased  parent's 
portion  among  them."'  Oiu-  child  died  after  the  testator,  but 
before  any  conversion,  leaving  a  wife.  Bulla,  and  several  chil- 
dren. Upon  the  land  being  sold  the  share  of  the  deceased  child 
was  paid  by  his  administrator  to  his  children  to  the  exclusion 

483;    Duckor    r.    Burnham,    14G   111.  *- Accord:    Strickland    v.    Strick- 

9,  24.  land,  271  111.  614;  ante,  §§  345,  346; 

See   the   following  eases  at  large  Sherman  v.  Flack,  283  111.  457;  Mc- 

in   accord    with   those   of   the    text:  Comb     r.     Morford,     283     111.     584 

Bayley    v.    Bishop,    9    Ves.    Jr.    6;  (where  the  lirst  taker  took  an  abso- 

Smith  V.  Palmer,  7  Hare  Ch.  224;  lute  interest  with  a  gift  over  at  her 

Bromley  v.  Wright,  7  Hare  Ch.  334;  death). 

Parker    v.    Sowerby,    1    Drew    488 ;  *»  Ante,    §  330 ;    People    v.    Byrd, 

Leeming    v.    Sherratt,    2    Hare    14;  253  111.  223,  228. 

Rumsey  v.  Durham,  5  Ind.  71,   75;  ■»f>  Ante,  §330,  note  62. 

Allen   V.  W^atts,   98   Ala.    384;    Mc-  so  44  m.  488.     See  also.  Bates  v. 

Clure's    Appeal,    72    Pa.    St.    414;  Gillott,    132    111.    287,   and    Boyd    v. 

Thomman's  Estate,  161  Pa.  St.  444;  Broadwell,  19  111.  App.  178. 
Weymouth    r.    Irwin,    5   Oh.    N.    P. 
248;    Moore  v.   Herancourt,   10  Oh. 
C.  C.  420. 

583 


§  505]  FUTURE    INTERESTS  [CH.    XX 


of  his  widow.     Suit  was  brought  by  the  widow  upon  the  bond 
of  the  administrator.     It  was  dismissed  and  this  was  affirmed. 

Tlie  decision  is  clearly  correct  upon  the  ground  that  the 
testator  specifically  provided  that,  upon  the  death  of  one  of 
his  children,  the  share  of  that  child  shall  go  to  the  deceased 
child's  children  (excluding  the  widow).  There  was  absolutely 
no  reason  why  that  clause  should  not  be  given  effect.  The 
court  certainly  placed  its  decision  upon  this  ground,  Mr.  Chief 
Justice  Breese  saying :  "  *  *  *  by  the  express  terms  of  the 
will,  in  case  of  the  death  of  any  one  of  testator's  children,  his 
share  was  to  go  to  such  children  as  he  might  leave." 

The  court,  however,  also  said  "we  are  satisfied  no  present 
interest  passed  to  Israel  Jennings,  Jr.  [the  deceased  son],  as 
the  land  was  not  converted  into  money  until  after  his  death." 
It  is  submitted  that  this  additional  ground  for  the  decision  is 
erroneous.  One  could  hardly  put  a  case  where  the  postpone- 
ment of  the  legacy  was  more  clearly  for  the  mere  convenience 
of  the  estate — convenience  in  turning  realty  into  personalty, 
to  pay  debts  and  legacies.  If  the  court  intended  to  cite  Marsh 
V.  Wheeler, '^^  to  sustain  its  position  that  the  son  here  did  not 
take  a  vested  interest  till  the  conversion,  it  was  unfortunate, 
for  that  case  is  a  most  excellent  authority  for  the  contrary.  It 
is  in  accord  with  the  Illinois  cases  cited  in  §  503,  only  if  any- 
thing, stronger  in  favor  of  holding  the  legacy  vested,  because 
the  conversion  was  not  to  take  place  till  a  year  after  the 
testator's  death.^^ 

§  505.  Banta  v.  Boyd:  '•''  Here  we  have  People  v.  Jennmgs 
over  again  with  the  same  correct  ground  of  decision  present 
and  the  same  misleading  view  taken  upon  the  point  of  vesting. 
In  this  case  there  was  a  direct  bequest  in  these  words:  "I 
devise  and  bequeath  to  each  one  named  below,  a  part  or  por- 
tion of  all  the  proceeds  of  all  the  real  and  personal  estate  of 
which  I  may  die  possessed  (after  paying  all  my  debts,  which 
may  be  few,  or  probably  none),  which  portion  or  share  is  to  be 
paid  to  each  one  named  below,  to-wit :     *     *     *     [then  follow 

512  Edw.  Ch.  (N.  Y.)  156.  sang  111.  186;    see  also  Boyd  v. 

52  Whether    the    dictum    that    the      Broadwell,  19  111.  App.  178. 
interest   is   contingent   can   be   sup- 
ported  by    the    gift   over,    see   post, 
§§  519-521. 

584 


Ch.    XX]  VESTING  OP  LEGACIES  [§506 

the  names  of  the  legatees]."    The  testator  then  appoints  execu- 
toi-s  and  gives  them  power  to  sell  and  divide  the  proceeds  as 
designated  "in  a  convenient  and  reasonable  time."     Then  the 
will  concludes:     "In  the  event  of  the  death  of  anyone  named 
above,  then  the  portion  or  share  of  the  decea.sed  to  be  paid  to 
his  or  lier  offspring     **     *     *."     One  of  the  legatees  died  tliir- 
teen   days  after  the  testator  and  long  before  any   conversion 
was  made.     In  holding  that  the  deceased  legatee's  children  were 
entitled  and  not  the  deceased's  administrator,  the  court  took 
due  notice  of  the  clause  expressly  providing  that  they  should 
take  in  the  events  which  happened.     The  opinion,  however,  is 
pregnant  with  the  idea  that  the  gift  to  the  deceased  legatee 
was  contingent,  whereas  by  every  rule  in  aid  of  construction  it 
Avas  vested.     This  is  clearer  than  in  People  v.  Jennings,^*  be- 
cause here  the  gift  is  not  alone  contained  in  the  direction  to 
divide,  but  there  is  a  present  direct  bequest  to  the  legatees.     It 
would  seem  to  be  clear  enough  also  that  the  postponement  of 
the  legacy  was  merely  for  the  convenience  of  the  estate.    Unless, 
therefore,  the  construction  sustained  can  be  supported  by  in- 
ferences drawn  from  the  gift  over  it  must  be  open  to  criticism. ■'•^ 
§  506.     Ebey  v.  Adams:  ^'*     In  this  ease  the  whole  estate  real 
and  personal  was  devised  to  the  widow  for  life.    Then  the  will 
provided:      "Upon    the    death    or    re-marriage    of    my    wife, 
Minerva,  it  is  my  will,  and  I  do  so  direct,  that  all  my  estate, 
real  and  personal,  shall  be  sold,"  and  from  the  proceeds  cer- 
tain legacies  be  paid,  "and  the  balance  of  the  proceeds  of  my 
estate  my  executors  are  hereby  directed  to  distribute   among 
my  children  or  their  heirs."     One  of  the  testator's  children, 
Elmira  Lewis,  died  before  the  life  estate  terminated,  leaving 
her  children  as  her  heirs.     She  had,  however,  conveyed  all  her 
interest  under  the  will  to  Ebey.     A  decree  that  the  children 
took  as  against  Ebey  was  affirmed. 

Nothing  could  be  clearer  than  that  this  decision  is  correct. 
It  is  correct  upon  the  supposition  that  Elmira  took  a  vested 
interest,  for,  even  if  she  did,  the  effect  of  the  word  "or"  was 
to  make  a  sii])stituti()nary  gift,  which  would,  and  did  in  fact, 

54  44  111.  488,  ante,  §  504.  ■'«  135  111.  80. 

55  As  to  how  far  the  argument 
based  upon  the  gift  over  will  take 
you,  see  post,  §§  519-521. 

585 


§  507]  FUTURE    INTERESTS  [CH.    XX 

operate  to  divest  any  previously  vested  interest  in  Elmira.'*'^ 
Any  vested  interest,  therefore,  which  Ebey  took  by  deed  from 
Elmira  was  divested.  Nor  could  the  heirs  of  Elmira  be  estopped 
by  her  deed  because  they  did  not  take  under  her  but  under 
the  will  of  the  testator. 

The  court,  however,  placed  its  decision  wholly  upon  the 
ground  that  "the  vesting  of  the  estate  in  interest,  as  well  as 
in  possession,  in  the  children  of  the  testator,  depended  upon 
their  surviving  the  day  of  distribution — in  other  words,  time 
is  of  the  substance  of  the  gift,  and  relates  to  the  vesting  of 
the  legacies  in  interest  as  well  as  in  possession."  The  first 
ground  for  this  result  was  that  the  gift  was  contained  only  in 
a  direction  to  divide  at  a  future  time — i.  e.,  the  time  of  con- 
version after  the  termination  of  the  life  estate.  This  is  clearly 
contrary'  to  the  settled  doctrine  of  the  English  cases,  under 
which  it  would,  it  is  submitted,  without  question,  have  been 
declared  that  the  postponement  in  this  case  was  merely  for  the 
convenience  of  the  estate  and  the  legacy  vested  upon  the 
testator's  death.  In  the  next  place,  the  court  construed  (and 
very  properly  as  it  would  seem)^^  the  word  "or"  to  mean  "in 
case  a  child  dies  before  the  death  of  the  life  tenant,  then  over 
to  that  child's  heirs."  From  this  limitation  over  they  under- 
took to  say  that  the  gift  to  the  children  must  be  contingent.^^ 
Tt  may  be  conceded  that  an  argument  against  vesting  arises 
from  the  presence  of  the  gift  over,  but,  unless  the  decision 
against  vesting  is  required  by  it,  the  case  must  be  regarded 
as  open  to  criticism.*^*^' 

§  507.  Barnes  v.  Johnston:  "^  Here  the  testator  after  pro- 
viding for  various  legacies  and  making  provision  for  the  widow, 
directed  his  executor  to  convert  all  the  estate  not  specifically 

57  Ante,  §  17;{.  legatees   took   a   contingent   interest 

58  Theobald    on    "Wills,    2ncl  ed.,      and  the  reasoning  of  the  court  upon 
493.  which  this  was  based  was  precisely 

59  See    also    Bates  v.   Gillett,  132       like  that  in  the  Illinois  case.     See 
111.  287,  294.  also  Kline  v.  Marsh,  12  Ohio  C.  C. 

The  limitations  involved  in  Richey  645. 
V.  Johnson,  30  Oh.  St.  288    (1876),  eo  As   to   how   far   the   arguments 

were,   as  the  court   there   construed  based  upon   the  gift  over  will  car- 

them,   identical   with   those   in   Ebey  ry,  see  post,  §§519-521. 
V.  Adams,  supra.     The  actual  deci-  Ri  23.S  111.  620,  622. 

sion  of  the  Ohio  court  was  that  the 

586 


Cll.    XX  I  VESTING  (JF  LKOACIE.S  f  5?  508 

devised  to  pay  legueies,  and  to  '"diNitli;  the  said  leinaiiuler 
equally  among  my  children  |  naming  them],"  with  a  gift  over 
''if  either  of  them  shall  l)e  then  deceased,  leaving  then  a  child 
or  children  of  their  bodies,  such  cliihl  or  ciiiklren  shall  take 
the  deceased  parent's  share  of  such  remainder."  One  of  the 
ehildi-en  died  before  the  period  of  distribution  leaving  a  widow 
and  children  and  the  question  arose  whetiier  the  widow  of  the 
deceased  child  was  entitled  as  next  of  kin  or  devisee  of  her 
husband.  It  was  held  that  she  was  not.  This  is  correct  because 
the  gift  over  took  effect.  The  court,  however,  instead  of  placing 
its  decision  on  that  ground,  declared  that  the  legacy  was  con- 
tingent upon  tiie  legatees  surviving  the  period  of  distribution, 
as  if  such  a  contingency  existed  for  all  purposes.  The  gift  over, 
while  it  furnished  some  argument  for  contingency,  was  not 
strong  enough  to  overcome  the  inference  in  favor  of  vesting 
from  the  fact  that  the  postponement  was  for  the  convenience 
of  the  estate.  The  language  of  the  court  should  have  been  that 
the  gift  was  vested  subject  to  be  divested,  and  that  the  event 
upon  which  the  divesting  was  to  occur  had  happened.  The 
statement  that  the  gift  was  contingent  is  sure  to  lead  to  unfor- 
tunate results  in  the  ease  w'here  the  only  gift  over  is  if  the 
legatee  dies  leaving  children  and  then  the  legatee  dies  before 
the  period  of  distribution  without  leaving  any  children,  but 
leaving  a  widow  or  devisee.  In  such  a  case  the  gift  over  does 
not  take  eflPect.  The  divesting  clause  does  not  operate  and  the 
widow  or  devisee  should  be  entitled.  But  if  the  gift  is  to  be 
taken  literally  as  contingent  on  tlie  legatee  surviving  the  period 
of  distribution,  the  widow  or  devisee  will  not  take. 

§508.  Strode  v.  McCormick:  "^  !„  i846  James  M.  Strode 
conveyed  by  deed  to  trustees  certain  real  estate  in  trust  for 
his  wife  for  life,  and  "at  her  death"  the  trustees  were  directed 
to  "sell  and  dispose  of  said  lot  and  its  appurtenances,  and  di- 
vide the  proceeds  equally  among  the  children  of  said  James 
"Si.  Strode,  the  issue  of  his  marriage  with  said  Mary  B.  Strode, 
share  and  share  alike  *  *  *."  There  was  no  gift  over  here. 
In  1871,  one  son,  Eugene,  died  leaving  a  wife  and  five  children. 
In  1874  the  land  was  mortgaged  by  the  trustees  and  others 
equitably  interested,  not  including  the  children  of  Eugene.     In 

e-'  158    III.    142. 

587 


§  509]  FUTURE    INTERESTS  [Ch.    XX 

1879  a  master's  deed  issued  upou  foreclosure  proceedings.  In 
1878  the  life  estate  expired  and  in  1891  the  children  of  Eugene 
filed  a  bill  to  establish  their  equitable  rights  and  for  a  partition 
or  sale.  The  bill  was  dismissd  with  a  finding  that  McCormick 
claiming  under  the  master 's  deed  was  the  owner  in  fee  and  that 
the  plaintiffs  had  no  rights.     This  was  affirmed. 

The  Supreme  Court  disregarded  all  reasons  in  favor  of  their 
decision  based*  upon  the  power  of  the  trustees  of  the  original 
settlement  to  mortgage,  or  of  the  wife  of  Eugene  (who  joined 
in  the  mortgage)  to  bind  her  children  under  the  will  of  Eugene, 
or  upon  the  Statute  of  Limitations,  and  rested  its  whole  opinion 
upon  the  point  that  the  children  under  the  settlement  took  an 
interest  contingent  upon  surviving  the  period  of  distribution — 
i.  e.,  the  death  of  the  life  tenant.  As  Eugene  died  long  before 
the  life  tenant  he  never  took  anything  under  the  settlement. 
His  children,  therefore,  took  nothing  from  him  b}^  devise  or 
descent.  This  construction  of  the  settlement  was  based  entirely 
upon  the  view  that  the  only  gift  to  the  children  was  contained 
in  the  direction  to  divide  equally  among  them  after  the  death 
of  the  life  tenant,  and  that  this  was  to  be  read  as  if  it  were 
a  limitation  to  such  as  might  be  the  children  of  the  settlor  after 
the  death  of  the  life  tenant.  The  court  entirely  disregarded 
the  fact  that  the  postponement  was  clearly  for  the  convenience 
of,  or  owing  to  the  position  of  the  estate  in  the  hands  of  the 
life  tenant.'''^ 

§  509.  Cases  where  it  is  doubtful  whether  the  direction  to 
pay  at  the  future  tim.e  is  for  the  convenience  of  the  estate  or 
personal  to  the  legatee:  Suppose  the  direction  is  to  divide 
among  all  the  testator 's  grandchildren  ten  years  from  his  death. 
Here  the  testator  may  have  designated  the  ten-year  period  as 
a  convenient  one  in  which  to  settle  and  realize  most  effectively 
his  assets,  or  he  may  have  done  it  because  he  thinks  a  distribu- 
tion at  that  time  for  the  best  interests  of  the  legatees  them- 

«3  Qtuere,  whether  Kidgeway  v.  a  gift  after  the  re-marriage  or 
Underwood,  67  111.  419,  is  not  open  death  of  the  widow,  which  was  con- 
to  criticism  upon  the  same  ground  tained  only  in  the  direction  to  dis- 
as  Strode  v.  McCormick,  supra,  and  tribute  at  that  time  was  contingent 
the  cases  in  §§  504-506.  See  also  upon  the  legatees  named  surviving 
Spengler  v.  Kuhn,  212  111.  186,  194.  that  period.  In  fact,  however,  there 
In  Thompson  v.  Adams,  205  111.  552,  was  other  language  in  the  will  which 
559,  the  court  appears  to  say  that  supported  this   construction. 

588 


ClI.    XX]  VESTING  OP  LEGACIES  (§510 

solves,  allowing  them  to  i-oach  a  certain  poriod  of  maturity  be- 
fore having  the  care  and  disposition  of  ])rop('i-ty.      If  the  con- 
text is  entirely  indecisive  and  there  is  no  resort  to  surronnd- 
ing  circumstances,   there    is  no   argument   either   way   and   tiie 
fact  that  the  only  gift  is  in  the  direction  to  pay  at  a  future 
time  may  be  decisive  in  favor  of  the  contingency  of  the  gift/'* 
In   Armstrong   v.  Barber  '■'•"•   the  surroiuuling  circumstances  in- 
dicated  that   the   fixing   (»f    the    period   of   distribution   at   ten 
years  from  the  probate  of  the  will  was  for  the  convenience  of 
the  estate.     The  personal  property  was  not  sufficient  to  pay 
debts  and  it  was  apparent  that  the  real  estate  was  not  to  be 
sacrificed  to  pay  them,  but  was  to  be  sold  from  time  to  time 
over  a  period  of  years.     In  O'Hare  v.  Johnston ''^^  it  is  sub- 
mitted that   the  surrounding  circumstances   showed   the   post- 
ponement   to    be    personal    to    tlie    legatees,    or    at    least    not 
at  all  for  the  convenience  of  the  estate.    The  trust  estate  started 
with  no  debts  and  with  first  class  bonds.     It  was  a  special  trust 
fund  taken  out  of  the  entire  estate  for  the  special  protection 
of  the  testator's  children  and  their  children.     The  trust  was 
to  last  for  thirty  years  from  the  testator's  death  and  the  dis- 
tribution was  to  occur  at  the  end  of  that  time.     The  extrinsic 
evidence  showed  that  the  period  of  distribution  was  postponed 
for  the  protection  of  the  beneficiaries  and  hence  the  payment 
in  futuro  was  personal  to  them.     IMore  recently  in  Walker  v. 
Wrt/Jt^r,"'  where  the  period  of  distribution  was  ten  years  from 
the  testator's  death,  the  court   while  not   finding  it  necessary 
so  to  decide,  seems  to  have  been  inclined  to  regard  the  post- 
ponement as  personal  to  the  legatee,  or  at  least  not  for  the  con- 
venience of  the  estate. 

Topic  4. 

Effect  on  Vesting  of  the  Payment  of  Interest  or  Income. 

§  510.  Cases  where  the  payment  of  interest  or  income  has 
no  effect  on  vesting  distinguished  from  those  w^here  it  may 
have  such  an  effect:  Where  the  context,  apart  from  the  pay- 
ment of  interest  or  income,  is  such  that  the  legacy  will  be  con- 

<•■■»  Ante,  §  500.  «g  27.3  111.  458,  470. 

••.5  239     111.     389,    400.      See    also,  •■.' 283  111.  11,  19-2'J. 

Mettler  v.  Warner,  243  111.  600,  610- 
611. 

589 


^311]  P^ITUKE    IXTEKESSTS  [CH.    XX 

stnied  to  be  vcsU'd  and  not  eontiugoiit  upon  the  legatee  sur- 
viving the  period  of  distribution,  the  payment  of  income  or 
interest,  if  it  be  an  independent  circumstanee  in  favor  of  vest- 
ing, merely  confirms  a  constrnetion  already  clear.  On  the  other 
hand,  the  legat-y  may  be  so  uncompromisingly  contingent  that 
the  paynunit  of  the  interest  or  income  cannot  modify  the  ex- 
pressed intent.  If  the  gift  is  "to  A  provided  he  survive  the 
age  of  twenty-one,"  or  any  other  period  of  distribution,  it  could 
hardly  be  claimed  that  the  payment  of  interest  or  income  in 
the  meantime  would  dispose  of  the  express  contingency  of  sur- 
vivorship. So  if  the  gift  were  to  a  contingent  class — as  a  gift 
"to  the  children  of  A  who  attain  twenty-one,"  or  "to 
such  children  as  attain  tAventy-one,"  •"'^  the  contingency  is 
so  emphatically  expressed  that  the  payment  of  income 
in  the  meantime  will  not  dispose  of  the  express  contingency. 
But  where  the  legacy  is  "to  A  ten  years  after  the  testator's 
death,"  "9  or  to  a  class  at  such  time,-'^  or  "to  A  at  the  age  of 
twenty-one,"  or  "upon  his  attaining  twenty-one," '^  or  to  a 
class  on  a  contingency — as  "to  the  children  of  A  at  twenty- 
one,"'-  or  "on  attaining  twenty-one,"'"  the  context  so  far 
fails  of  explicitness  in  requiring  the  gift  to  be  contingent  or 
that  the  legatee  survive  the  period  of  distribution,  that  a  di- 
rection that  interest  or  income  shall  be  paid  in  the  meantime 
may  become  a  decisive  circumstance  in  vesting  the  gift  and  thus 
prevent  its  being  construed  to  be  contingent  on  the  legatee  sur- 
viving the  period  of  distribution. 

^511.  Principle  upon  which  the  payment  of  interest  or  in- 
come gives  rise  to  an  inference  in  favor  of  vesting^  the  legacy: 
If  the  interest,  dividends  or  income  be  the  subject  of  a  separate 
gift  no  argument  for  vesting  arises.    If  the  interest,  dividend  or 

«s  Theobald  on  Wills,  7th  ed.  582;  -i /«  re  Williams,  L.  R.   [1907]   1 

Dewar   v.   Brooke,   14   Ch.  Div.   529  Ch.  180. 

(1880);    Wilson  v.  Knox,  L.   R.   13  ^2  Pox  v.  Fox,   L.  R.   19   Eq.   286 

Ir.  (Ch.  Div.)  349;  Howe  v.  Hodge,  (1875) ;  Eccles  v.  Birkett,  4  DeG.  & 

152  111.  252,  276;   McCartney  v.  Os-  S.  105. 

burn,  118  111.  403,  421.  ^'^  In  re   Turney,  L.  R.    [1899]    2 

c9  Armstrong   v.    Barber,    239    111.  Ch.  739.     See  also,  Eldred  v.  Meek, 

389.  183  111.  26,  37. 

70  0 'Hare  v.  Johnston,  273  111. 
458.  But  see  Reid  v.  Voorhecs,  216 
111.  236. 

590 


Ch.    XX]  VESTING  OF  MaJAf  IKS  [§512 

income  bo  given  as  neeessurily  following  the  gift  of  i)rincii)al, 
there  is  an  admission  in  the  context  that  the  gift  of  principal 
has  been  made  and  an  inference  in  favor  of  vesting  arises.  In 
determining  whether  the  interest  or  income  is  the  subject  of 
a  separate  gift  or  follows  the  original  gift,  it  is  important  to 
observe  whether  the  interest  or  income  given  is  upon  or  out 
of  the  precise  subject  of  the  legacy  and  whether  the  wiiole 
interest  or  income  till  the  period  of  distribution  is  given.  If 
it  is  not  the  inference  in  favor  of  vesting  will  not  arise. 

It  will  be  found  convenient,  though  not  necessarily  logical, 
in  determining  whether  the  interest  or  income  is,  or  is  not,  the 
subject  of  a  separate  gift,  to  consider  separately  the  cases  where 
the  gift  is  to  named  individuals  and  those  wliere  it  is  to  a  class. 
§  512.    Where  the  legacy  is  to  a  named  individual  at  a  future 
time  with  interest  or  income  in  the  meantime :     When  the  only 
gift  to  a  named  individual  is  contained  in  a  direction  to  pay 
at  a  future  time— as  "to  A  at  twenty-one,"  the  direction  that 
the  legacy  bear  interest  at  the  legal  rate  in  the  meantime  is 
effective  to  prevent  the  legacy  being  contingent  on  the  Ipgatee 
surviving  that  age."^     The  legacy  is  vested  at  once.     The  same 
is  true  where  income  from  an  investment  of  the  amount  of  the 
legacy,  or  interest  in  the  sense  of  such  income,  is  given  in  the 
meantime ;  "^   or  where   it   is  given  only   for  the  maintenance 
of  the  legatee  and  payable  absolutely,''-  or  in  such  part  as  the 
trustees  deem  wise,  the  unpaid  portion  being  accumulated  and 
held   for  the  ultimate   benefit   of  the  legatee."     The  difficult 
case  is  where  the  income,  or  so  much  thereof  as  the  trustees 
see  fit,  is  to  be  paid  to  a  named  beneficiary  and  nothing  is  said 
as  to  what  shall  be  done  with  the  balance."^    The  fair  inference 
is  that  it  is  to  be  accumulated  and  paid  over  with  the  principal, 
so  that  the  legatee  receives  it.    An  inference,  therfore,  arises  in 
favor  of  vesting. 

In  Bennett  v.  Bennett'''-^  the  attempt  by  the  legatee  to  end 

T4Clobberie's  Case,  2  Vent.  342.  -sin  Spencer  v.  Spencer,  268  111. 

7R  Hanson  v.  Graham,  6  Ves.  239.  332,  the  only  question  was  as  to  the 

70  Hoath   V.   Hoath,  2   Brown,  Ch.  effectiveness   of   a   gift   over.     Post, 

3;    In  re   Hart's  Trusts,   3   De   Gex  §§519  ct  scq. 

&   J.    195.  '^217   111.   434. 

■!■  In  re  Williams,  L.  R.  [19071   1 
Ch.  180. 

591 


§  513]  FUTURE    INTERESTS  [Ch.    XX 

the  trust  was  properly  defeated  because  there  was  a  gift  over 
if  the  legatee  died  uuder  forty,  and  the  trustee  did  not  consent 
to  the  termination  of  the  trust.  So  far  as  the  opinion  of  the 
court  appeai-s  to  hold  that  the  legacy  was  for  all  purposes  con- 
tingent on  the  legatee  surviving  the  age  of  forty,  it  is  difficult 
to  follow.  Not  only  was  there  a  direct  gift  to  the  beneficiary 
with  a  super-added  direction  that  payment  was  to  be  made  at 
his  age  of  forty,^"  but  it  was  provided  that  the  legacy  should 
be  held  by  a  trustee  and  the  income  paid  over  to  the  legatee. 
This  presented  a  plain  case  for  the  vesting  of  the  legacy.  The 
result  reached  by  the  court  could  be  rested  only  upon  the  effect 
to  be  given  to  the  gift  over  and  the  refusal  of  the  trustee  to 
terminate  the  trust. 

In  Armstrong  v.  Barber  ^^  one-third  of  the  income  was  given 
to  each  of  three  named  beneficiaries  and  the  principal  of  the 
trust  fund  was  given  in  thirds  to  each  of  the  same  beneficiaries 
at  the  period  of  distribution,  which  was  fixed  at  ten  years  from 
the  probate  of  the  will.  This  was  a  gift  of  income  on  the  share 
of  each  to  each  legatee  and  furnished  an  inference  in  favor 
of  vesting  the  interests  at  the  testator's  death,  so  that  the  Rule 
against  Perpetuities  was  not  violated. 

§  513.  Where  the  legacy  is  to  a  class  at  a  future  time  with 
the  income  in  the  meantime:  Suppose  the  gift  be  to  a  class 
of  children  equally  at  twenty-one.  If  the  income  from  "each 
share"  is  to  be  paid  to  each  child,  clearly  the  inference  in  favor 
of  vesting  arises.  The  same  is  true  though  the  income  from 
"each  presumptive  share"  is  given  to  each  child  ^^  and  even 
though  it  is  given  for  the  maintenance  of  the  child  only.^^  The 
inference  in  favor  of  vesting  still  obtains  though  the  income 
from  each  presumptive  share  is  given  only  for  maintenance  in 
the  discretion  of  the  trustee,  the  unpaid  portion  to  be  accumu- 
lated and  added  to  the  principal  of  each  share.^^  The  difficult 
ease  is  where  the  distribution  of  the  income  of  each  presumptive 
share  to  each  beneficiary  is  placed  wholly  or  in  part  in  the  dis- 

80  Ante,  §  499.  ®^  This  also  follows   from  Fox  v. 

«i  239  111.  389.  Fox,     supra;      Eecles     v.      Biikett, 

s^  This  follows  from  Fox  v.  Fox,  supra;  In  re  Turney,  supra. 

L.  R.  19  Eq.  286;  Eceles  v.  Birkett,  «'  In  re  Tui'iioy,  supra. 

4   De   G.   &   S.   105;    In   re   Turney, 

L.  R.   [1899]   2  Ch.  739. 

592 


Cli.    XX]  ,,     VESTING  OF  LEGACIES  [§513 

crotion  of  the  trustee  and  nothiii}^'  is  said  about  wliat  shall 
ha!)|)en  to  the  income  not  distributed.  If  the  income  accumulates 
and  is  added  to  each  share,  the  inference  in  favor  of  vesting 
arises.  If  it  accumulates  and  is  distributed  among  all  the 
beneficiaries  c(|ually  the  inference  in  favor  of  vesting  fails. 
Where  the  accumulated  income  goes  may  depend  solely  upon 
whether  the  gift  is  vested  or  not  and  tiius  the  whole  process 
of  reasoning  becomes  entirely  circular.  In  this  dilemma  the 
inclination  of  llie  courts  in  tavor  of  vesting  might  be  used  to 
re(|uii-e  the  accumulation  to  be  added  to  the  share  from  which 
it  was  derived  so  that  an  argimient  for  vesting  would  arise. 
This  is  in  accord  with  the  result  reached  by  Jessel,  1\I.  R.,  in 
Fox.  V.  Fox.""-' 

The  moment,  however,  that  the  income  from  the  whole  fund 
is  to  be  applied  generally  to  the  maintenance  of  the  class,  with 
power  in  the  trustee  to  vary  the  amounts  which  each  shall  re- 
ceive, the  gift  of  income  is  the  subject  of  a  separate  gift  and 
does  not  follow  the  gift  of  the  principal  and  no  inference  in 
favor  of  vesting  arises.'^*'  So  where  the  income  from  "each  ex- 
pectant share,"  or  such  part  as  the  trustee  determines,  is  to  be 
paid  to  the  beneficiaries  for  maintenance  and  the  balance  ac- 
cumulated and  added  to  the  principal  which  is  distributable 
among  all  the  members  of  the  class,  the  inference  in  favor  of 
vesting  from  the  payment  of  income  does  not  arise.^^  So  where 
a  gift  is  made  to  children  and  issue  at  twenty-one  with  the 
income  payable  to  the  children  and  issue  of  a  deceased  child 
per  stirpes  but  the  capital  is  ultimately  to  be  distributed  per 
capita,  the  gift  of  income  was  separate  from  the  gift  of  prin- 
cipal and  no  inference  in  favor  of  vesting  arose.*^*^     In  O'Hare 

S5  L.    R.    19    Eq.    286;    Eccles    v.  Meiicfee    (Tex.    Civ.    App.),    174   S. 

Birkett,   4   De   G.   &   S.   105;    In  re  W.   904.     But   see  Dohn 's   Executor 

Williams,   L.    R.    [1907]    1    Ch.   180.  t.  Dohn,  23  Ky.  L.  R.  356. 

But    see    opinion    of    North,    J.,    in  »'  Wilson   v.    Knox,    L.    R.    l.'>   Ir. 

In    re   Wintle,    L.    R.    [1896]    2   Ch.  ;549. 

711;   also  Wilson  v.  Knox,  L.  R.  13  ^sRountz's    Estate,   213   Pa.   390, 

Ir.  349.  399.     In  Morouey  v.  Haas,  277  111. 

»'' In  re  Parker,   16  Ch.   Div.   44;  467,  the  income  was  payable  to  chil 

In  re  Grimshaw's   Trusts,  L.  R.   11  dren   and   issue  of   a   deceased   child 

Ch.  Div.  406;  In  re  Mervin,   [1891]  per  capita,  but  the  principal  was  to 

3    Ch.    197.      See    also,    Andrews    r.  be    divided    per    stirpes,    the    court 

Lincoln,    95    Me.    541;    Anderson    i.  found  no  inference  in  favor  of  vest- 


Kales  Fut.  Int.-— riS 


b9:i 


§  513]  FUTURE    INTERESTS  [CH.    XX 

r.  Johnston^-'  the  testator  bequeathed  one  himdred  red  bonds 
and  one  hundred  blue  bonds  to  the  trust  company  on  trust  to 
hold  for  the  period  of  thirty  years  from  the  testator's  death 
and  to  pay  one-half  of  the  income  arising  from  the  trust  fund 
to  each  of  the  testator's  two  children,  William  and  Hazel.  At 
the  end  of  the  thirty  year  period  the  trust  company  was  to 
deliver  to  William  fifty  red  bonds  and  fifty  blue  bonds,  or  the 
proceeds  thereof,  and  to  Hazel  fifty  red  bonds  and  fifty  blue 
bonds,  or  the  proceeds  thereof.  It  was  pressed  upon  the  court 
that  the  gift  of  income  was  separate  from  the  principal  because, 
while  one-half  the  total  income  of  the  trust  estate  was  given 
to  each  child,  the  distribution  was  of  the  particularly  described 
bonds  in  each  trust,  or  the  proceeds  thereof.  Hence  one-half 
of  the  whole  income  paid  to  each  beneficiary  might  not  at  all 
correspond  with  the  income  on  the  actual  trust  estate  belonging 
to  each.  This  distinction  was  too  fine  for  the  court,  which  found 
in  the  payment  of  income  a  strong  inference  in  favor  of  vest- 
ing. The  court  treated  the  case  as  if  the  income  in  fact  fol- 
lowed the  principal  and  the  expectant  beneficial  interest  in  the 
principal  at  all  times. 

Suppose  a  fund  as  a  whole  is  given  to  a  class  equally  at 
twenty-one  with  the  income  as  a  whole  to  be  divided  equally 
among  the  members  of  the  class.  Whether  the  income  is  di- 
vided without  qualification  or  whether  it  is  specified  to  be  for 
support  and  maintenance,  the  cases  are  the  same  so  far  as  any 
inference  in  favor  of  vesting  is  concerned,  because  in  either  case 
all  the  income  must  be  divided  equally  and  paid  or  applied  by 
the  trustee.  Several  of  the  English  equity  judges  seem  to  have 
held  that  in  such  cases  the  gift  of  income  is  a  subject  of  gift 
separate  from  the  principal  and  that  no  inference  in  favor  of 
vesting  arose.'^f'     Jessel,  M.  R.,  however,  doubted  the  soundness 

ing.     In    Pitzel    v.    Schneider,    216  able  to  nejihews  and  nieces  and  in 

111.    87,    the    income    given    did    not  case   any   of  them   died   without  an 

correspond    to    the    income    on    the  heir    then   to    survivors.      The    prin- 

shares   of  the  principal  distributed.  cipal  was   to   be  distributed  at  the 

In    Kingman    v.    Harmon,    131    III.  end  of  thirty  years  to  the  nephews 

171,    the   income    was    for   the    sup-  and  nieces  or  their  heirs,  and  if  no 

port  of  the  wife  and  children  and  heirs,  to  be  divided  equally  among 

the    principal    was    divided    among  tlie  survivors, 
the  children.     In  Reid  v.  Voorhees,  «» 273  111.  458. 

216   111.   236,   the  income   was   pay  "" /«  re  Ashmore's  Trusts,  L.  R. 

594 


Ch.    XXJ  VESTING  OK  l.i:(iA(JIKS  [§514 

ol'  this  course  ol'  deeisiou  wlit-n,  in  Fox  v.  Fox^-'^  he  said:  "Tlie 
Viee-Chancellor,  in  the  case  of  In  re  Ashmore's  Trusts  [Law 
Rep.  9  Eq.  Of)],  appears  to  luive  thrown  out  the  suggestion  tliat 
there  might  be  a  distinction  between  a  gift  of  a  separate  share 
to  each  of  the  chiklren  on  attaining  twenty-one,  witli  a  gift 
of  the  income  in  the  meantime  for  maintenance,  and  a  gift  of 
a  fund  to  each  of  the  eliildren  on  attaining  twenty-one,  in  equal 
shares,  with  a  gift  of  interest  in  the  meantime.  I  can  find  no 
such  distinction  taken  in  any  other  case,  and  it  seems  to  me 
to  be  much  too  fine  to  be  relied  on."  Clearly  our  Supreme 
Court,  after  its  decision  in  O'llare  v.  Johnston,'^-  must  be  re- 
garded as  approving  Jessel's  position. 

§  514.  Cases  (a)  where  the  income  is  not  given  during  the 
entire  period  before  distribution,  and  (b)  where  all  the  income 
is  accumulated  and  given  at  the  period  of  distribution  along 
with  the  principal:  In  both  cases  alike  the  payment  of  income 
does  not  give  rise  to  an  inference  in  favor  of  vesting.  Thus,  if 
the  interest  or  income  is  given  only  for  a  portion  of  the  period 
before  the  time  for  distribution,  as  where  the  legacy  is  given  at 
twenty-six,  and  the  income  only  until  the  legatee's  majority,  it 
is  doubtful  wiiether  any  inference  of  vesting  arises  from  the  pay- 
ment of  income.^-'  It  has  ])een  held  that  where  the  income  is  not 
given  during  the  period  before  distribution,  but  is  to  be  entirely 

9   Eq.  99;    Kales'  Cases  on  Future  able    from   the    cases   cited    by    Mr. 

Interests,    452;     Butcher    v.    Leach  Stirling  where  the  whole  income  of 

(1843)    5    Beav.    .392    (income    for  a  specific   fund  was   directed   to  be 

maintenance)  ;  In  re  Morris  (1885),  applied  towards  the  maintenance  of 

.33    V7eekly    Rep.    895    (income    for  a  particular  person.    That  is  not  the 

maintenance).     Bacon,  V.  C,  said:  case  here.     There  must  be  a  declara- 

" There  are  here  two  distinct  gifts:  tion  that  there   is  a  lapse  as  to  a 

one   gift   to   the   trustee  of   the   in-  moiety    of    the    residuary    estate    of 

come  to  be  applied  for  the  mainte-  this     testatrix."       In     re     Martin 

nance  and  education  of  two  children.  (1887),   57    L.    T.   R.    (N.   S.)    471 

But  there  is  no  division  of  the  in-  (income  for  maintenance);    Spencer 

come   equally    among    the    two,    and  v.   Wilson,   L.  R.   16  Eq.   501    (here 

no  gift  of  any  specified  part  of  the  the  income  was  to  be  divided  among 

income  to  either  child.     There  is  a  the  members  of  the  class,  but  was 

gift  of  the  corpus  equally  between  not  directed  to  be  for  maintenance), 

the  two  children,  but  only  when  they  See    also    Eldred    i'.   Meek,    183    111. 

shall  respectively  attain  twenty-one;  26,  37. 

there    is,   therefore,   no    gift    of   the  9i  L.  R.  19  Eq.  286. 

corpus    till    they   attain    twenty-one.  ^-  273   111.  458. 

This  case   is,   therefore,   distinguish-  '-''-^  Theobald  on  Wills,  7th  od.  587. 

595 


§  515]  FUTURE    INTERESTS  [Ch.    XX 

accumulated  and  given  along  with  the  principal  at  the  time  of 
distribution,  the  gift  of  income  furnishes  no  inference  in  favor 
of  vesting.*'"' 

Topic  5. 

Legacies  Payabi.e  When  the  Youngest  op  Several  Legatees 
Reaches  ^  Given  Age. 

5j  515.  The  rule  of  Leeming-  v.  Sherratt :  ^'''  In  this  case  a 
residuary  trust  of  personalty  was  contained  only  in  the  direc- 
tion to  divide  among  children  when  the  youngest  reached  twenty- 
one,  with  a  gift  over  in  case  any  child  died  leaving  lawful  issue, 
such  issue  to  take  "the  share  the  parent  so  dying  would  have 
been  entitled  to  have."  The  gift  over,  it  should  be  observed, 
gave  rise  to  an  inference  that  the  gift  was  contingent  on  the 
children  surviving  the  period  of  distribution.'^'^  But  the  fact 
that  a  residue  was  involved  raised  an  inference  the  other  way. 
The  court  held  that  while  each  child,  to  take,  must  attain  twenty- 
one,'*"  3'et  the  gift  to  each  was  not  contingent  on  each  surviving 
the  time  when  the  j^oungest  child  reached  twenty-one.  This  case 
has  been  taken  as  establishing  an  inference  that  a  gift  to  several 
when  the  youngest  reaches  a  certain  age  is  not  contingent  on 
each  surviving  the  period  when  the  youngest  reaches  the  re- 
quired age,  but  is  only  contingent  on  each  one  reaching  the  age 
which  the  3'oungest  is  required  to  reach.**^ 

In  view  of  the  way  in  which  the  English  Equity  Judges 
handled  this  special  case  it  is  important  to  observe  how  far  our 
Supreme  Court  has  departed  from  or  followed  it. 

9*Loeke  -y.  Lamb,  4  Eq.  372;  Kus-  as  Accord:     Parker     v.     Sowerby 

sell  V.   Russell,  L.   R.    [1903]    1  Ir.  (1853),   1   Dr.   488    (there  were  no 

168.  gifts    over)  ;     In    re    Smith 's    Will 

95  2  Hare,  14  (1842).  (1855),    20    Beav.    197;     Lloyd    v. 

'■^(■•Post,  §520.  Lloyd  (1856),  3  K.  &  J.  20. 

97  This   was    followed    in    the    fol-  In    the    following    case,    however, 

lowing    eases:     Parker    v.    Sowerby,  only  those  who  actually  survived  the 

1  Dr.  488;   Lloyd  v.  Lloyd   (1856),  attainment  of  the  age  specified  by 

3  K.  &  J.  20;  Ford  v.  Rawlins,  1  S.  the  particular  member  of  the  class 

&    St.    329.     Accordingly    in    these  were    permitted    to    share:      In    re 

cases  the   children   who   died   before  Hunter's  Trusts,  L.  R.  1  Eq.  295. 
attaining  twenty-one  never  took  any 
interest     and    their     representatives 
were  not   entitled. 

596 


ClI.    XX  J  VESTING  OP  LEGACIES  [§515 

111  IiidyiLcay  V.  Under  wood ''■*  there  was  a  devise  lo  the  testa- 
tor's wife  of  a  living  and  support  out  of  the  farm  left  by  the 
deceased.  Then  the  third  paragraph  of  the  will  proceeded  as 
follows:  "1  will,  at  the  death  of  my  wife,  and  on  my  youngest 
child  coming  of  age,  the  farm  on  which  I  now  reside,  as  afore- 
said, be  sold  and  the  proceeds  divided  amongst  my  seven  chil- 
dren, *  *  *  [naming  themj,  their  heirs  and  assigns  forever, 
and  if  one  or  more  of  said  seven  children  should  die  before  in- 
heriting his,  her  or  their  inheritance,  to  be  divided  equally 
amongst  the  remainder  of  tlie  seven."  This  does  not  appear  to 
have  been  the  residuary  clause  of  the  will,  but  the  gift  over  did 
furnish  some  inference  in  favor  of  vesting.^  Nevertheless,  the 
court  held,  as  one  of  the  grounds  for  the  decision,  that  the  gift 
to  the  children  vested  in  those  only  who  survived  the  period  of 
distribution,  i.  c,  when  the  youngest  reached  twenty-one.  Leevi- 
ing  V.  Sterratt  was  overlooked. 

In  McCartney  v.  Osbur)t  -  the  time  fixed  for  the  distribution 
of  the  residue  was  when  the  "youngest  child  of  Henrietta  arrives 
at  the  age  of  twenty-one  years."  Then  the  division  was  to  be 
made  between  the  then  living  heirs  of  Henrietta  and  Harry  J. 
McCartney.  It  is  assumed  that  Harry  had  reached  twenty-one. 
It  was  nevertheless  held  that  Harry's  interest  was  contingent 
on  his  surviving  the  period  of  distribution  because  the  gift  was 
contained  only  in  the  direction  to  divide  at  a  future  time. 
Leeming  v.  Sherratt  was  clearly  distinguishable  because  the  gift 
to  the  heirs  of  Henrietta  who  were  to  take  with  Harry  was  ex- 
pressly made  contingent  upon  their  surviving  the  period  of  dis- 
tribution. The  case  was  not  strictly  one  of  a  gift  to  several  upon 
the  single  event  of  one  reaching  a  given  age.  The  fact  that  the 
gift  was  in  a  residue  was  insufficient  under  the  circumstances 
to  overcome  the  inference  in  favor  of  contingency. 

In  Kingman  v.  Harmon  •*  residuary  real  estate  was  "reserved 
for  my  children,"  to  "be  divided  equally  among  them  when  the 
j'oungest  attains  the  age  of  twenty-one  (21)  years."  The  court 
treated  tiiis  as  a  bequest  of  personalty  contained  only  in  the 

99  67  111.  419.  2  118  111.  403. 

i  Observe,  however,  that  there  was  3  131  m.  171.     Yot  a  further  con- 
here   in  the   gift   over   an   argument  sideration    of    this    case    see    ante, 
that    the    gift    to    the    children    was  §§307,  481. 
vested.     Post,  §  519. 

597 


§  .315]  FITUKE    INTERESTS  [CH,    XX 

diieetioii  to  divide  at  a  future  time.  Under  Leetning  v.  Sherratt 
the  bequest  would  be  contingent  at  least  until  each  child  reached 
twenty-one.  Ilenee  a  guardian's  sale  on  behalf  of  those  who 
were  inuler  tliat  age  would  be  void.  The  court  so  held.  The 
case  is  not  contrary,  therefore,  to  Leetning  v.  Sherratt.  The 
dictum  of  the  court  is,  however,  that  the  gift  was  contingent  on 
each  child  being  alive  when  the  youngest  reached  twentj^-one. 

In  Schitknecht  v.  Schultz,'^  a  sum  was  to  be  divided  among 
grandchildren  when  the  youngest  reached  twenty-five.  Under 
Lecming  v.  Sherratt  each  must  reach  twenty -five  to  take.  As 
the  class  might  increase  by  the  birth  of  those  born  after  the 
testator's  death,  the  Rule  against  Perpetuities  was  violated.  The 
case  does  not  necessarily  hold  that  the  gift  was  contingent  upon 
each  child  surviving  the  period  when  the  youngest  reached  twen- 
ty-five. 

In  Moroney  v.  Haas ''  the  limitations  after  a  life  estate  to  A 
were  to  pay  the  income  to  such  of  her  children  and  issue  of  de- 
ceased children  as  may  survive  her  until  the  youngest  living 
child  her  surviving  shall  arrive  at  the  age  of  twenty-five  years, 
at  which  time  the  principal  was  to  be  conveyed  ''to  such  sur- 
viving children  of  my  said  niece,"  and  to  the  issue  of  any  de- 
ceased child  or  children,  the  latter  to  take  per  stirpes,  and  in 
case  no  such  children  or  issue  of  deceased  children  shall  survive 
her,  or  in  case  no  surviving  child  shall  attain  the  age  of  twenty- 
five  years  and  all  shall  die  without  issue,  then  the  share  so  held 
in  trust  shall  be  a*nd  is  hereby  given,  devised  and  bequeathed 
to  the  testatrix's  nephew,  James,  absolutelj'.  The  gift  when  the 
youngest  child  reached  twenty-five  was  held  void.  Leaving  out 
the  effect  of  the  payment  of  income  in  the  meantime  the  gift 
was,  in  accordance  with  Leeniivg  v.  Sherratt,  at  least  contingent 
on  each  child  reaching  twenty-five  and  that  was  sufficient  to 
make  the  gift  to  the  children  void  for  remoteness.  It  was  not 
necessary  to  decide,  and  the  court  did  not  decide,  that  the  gift 
was  contingent  on  all  surviving  the  time  when  the  youngest 
reached  twenty-five.^ 

•*  212  111.  43.  reached  twenty-one  was  to  "living" 

» 277  111.  467.  lieirs,    which   was   construed    as   ex- 

6  In  Jones  v.  Miller,  28.3  111.  .048,  pressly  requiring  survivorship  at  the 

the    gift    when    the    youngest    child  period   of  distribution. 

598 


Ch.    XX]  VESTING  OF  LEGACIES  [S5  518 

Topic  6. 

Mlscellaneous  Grounds  of  Inference  in  Favor  of  Vesting. 

§  516.  The  fact  that  the  legacy  is  of  a  residue,  or  is  consti- 
tuted a  trust  fund  separate  from  the  balance  of  the  estate :  In 
ArmstroiKj  v.  liarlxr'  llie  court  nieiitioned  the  fact  that  the 
legacies  and  gifts  in  question  were  of  the  residue  of  the  estate, 
so  that  if  they  were  contingent  there  was  a  possibility  of  an  in- 
testacy. This  raised  an  inference  in  favor  of  vesting.**  From 
McCartney  v.  Oshiirn  »  it  would  be  inferred  that  this  inference 
is  not  strong  enough  to  overcome  the  inference,  arising  from  the 
fact  that  the  only  gift  is  in  the  direction  to  pay  at  a  future  time, 
that  the  gift  is  contingent. 

In  O'Hare  v.  Johnston  '"  the  court  found  an  inference  in  favor 
of  vesting  in  the  fact  that  the  subject  of  the  gift  was  placed  in 
a  special  trust  fund  separated  from  the  balance  of  the  estate.i^ 
In  Bennett  v.  Bennett^-  the  only  question  was  whether  the 
legatee  could  end  the  trust  before  the  period  of  distribution.  It 
was  held  that  he  could  not.  This  was  correct  by  reason  of  the 
gift  over.  So  far,  however,  as  the  court  seems  to  have  held  that, 
regardless  of  the  gift  over,  the  trust  could  not  be  terminated 
because  the  legacy  was  contingent  for  all  purposes  upon  the 
legatee  surviving  the  age  of  forty,  it  ignored  the  fact,  among 
others,  that  the  legacy  was  placed  in  a  special  trust  fund  and 
separated  from  the  balance  of  the  estate. 

§  517.  Where  a  charge  is  placed  upon  the  share  of  the  lega- 
tee: In  Xicoll  V.  Scott  I"'  our  Supreme  Court  raises  an  infer- 
ence that  a  gift  at  a  future  time  is  not  contingent  on  the  bene- 
ficiary surviving  the  period  of  distribution,  because  upon  the 
gift  is  charged  un(iualifiedly  the  payment  of  a  sum  of  money  to 
another.  If  the  gift  were  contingent  on  the  beneficiary  surviv- 
ing the  period  of  distribution  the  money  might  not,  and  prob- 
ably would  not,  be  paid. 

§518.  Effect  of  references  to  "shares"  or  "portions"  of 
legatees  to  whom  the  only  gift  is  in  a  direction  to  pay  or  divide 
at  a  future  time:     Only  the  consideration  of  each  context  can 

7  239  111.  :}89.  »>  See    also    Saunders   v.   Vautier, 

»  Booth  V.  Booth,  4  Ves.  Jr.  SOO.       4  Beav.  115;  1  Cr.  &  Ph.  240. 
9  118  111.  40:V  1=217  111.  4.-^4. 

">27;5  111.  458.  1^99  111.  529,  539. 

599 


§  519]  FUTURE    INTERESTS  [CH.    XX 

determine  whether  sucli  references  will  provide  an  ett'ective 
argument  for  vesting  or  not.  In  McCartney  v.  Oshuni'^^  the 
court  was  of  the  opinion  that  "no  special  significance  is  to  be 
attached  to  the  fact  that  the  testator  in  this  connection  speaks 
of  the  heirs*  'interest  in'  or  'portion  of  the  estate.  In  the  con- 
nection in  which  these  expressions  occur,  the  testator  doubtless 
means  nothing  more  than  the  presumptive  or  prospective  inter- 
ests or  portions  of  the  children."  On  the  other  hand,  in  Arm- 
strong V.  Barber  ^^  somewhat  similar  expressions  and  references 
were  regarded  as  furnishing  a  strong  inference  in  favor  of  vest- 
ing. 

Topic  7. 

Effect  of  Gifts  Over. 

§  519.  Inference  in  favor  of  vesting  founded  upon  the  pres- 
ence of  a  gift  over:  ^"^  The  effect  of  the  gift  over  on  vesting 
is,  it  is  believed,  purely  a  matter  of  rational  inference.  If  the 
gift  over  is  entirely  consistent  with,  and  performs  a  perfectly 
rational  function  on,  the  hypothesis  that  the  preceding  interest 
is  contingent,  then  it  can  furnish  no  argument  that  it  is  vested. 
Thus,  if  the  gift  is  to  A  at  twenty-one  so  that  standing  alone  it 
must  be  contingent,  a  gift  over  to  B  if  A  dies  under  twenty-one 
cannot  make  the  gift  to  A  vested. ^^  The  gift  over  performs  its 
proper  and  natural  function  if  A's  interest  is  contingent,  since 
it  provides  for  a  gift  in  the  event  of  A's  interest  never  vesting. 
On  the  other  hand,  if  the  gift  over  performs  no  function  at  all, 
unless  the  preceding  interest  be  vested,  it  furnishes  an  argu- 
ment for  construing  the  preceding  interest  vested.  Thus,  if  the 
gift  be  to  a  class, — as  the  children  of  A  when  they  reach  twenty- 
one — followed  by  a  clause  of  accruer  giving  the  interests  of  those 
dying  under  twenty-one  to  the  other  members  of  the  class,  the 
gift  over  would  clearly  be  useless  if  the  shares  were  contingent 
on  the  members  of  the  class  reaching  twenty-one.  There  is, 
therefore,  in  sufh  a  case,  a  rational  inference  in  favor  of  vest- 
ing.^*    In  the  same  way,  upon  a  gift  to  A  at  twenty-one,  with 

14  118  111.  40.3,  423.  17  Theobald  on  Wills,  2nd  ed.  416. 

15  239  111.  389,  401-402.  For  the  rule  contra  where  real  es- 
18  For  the  same  inference  as  ap-       tate  is  involved,  see  ante,  §  334. 

plied  to  remainders,  see  ante,  §§  336  is  Theobald  on  Wills,  2nd  ed.  416. 

et  seq. 

600 


ClI.    XX]  VESTING  OP  LEGACIES  [§  519a 

a  gift  over  if  A  die  without  leaving  issue  him  surviving,  the  gift 
over  furnishes  no  argument  for  vesting  prior  to  the  legatee's  at- 
taining twenty-one,  hecause  it  has  a  reasonable  effect  upon  the 
assumption  that  the  interest  does  not  vest  till  the  legatee  attains 
twenty-one.^*-*  If,  however,  the  gift  over  is  upon  the  death  of  A 
under  twenty-one  and  without  issue,  it  may  well  be  argued,^" 
that  an  intent  is  shown  that  A  is  to  be  deprived  only  if  he  die 
under  twenty-one  without  issue.  This  intent  could  not  possibly 
be  efl'cctive  unless  the  preceding  interest  were  vested. ^^ 

§  519a.  Cases  where  the  gift  over  furnished  an  argument 
for  vesting:  In  Illinois  Land  and  Loan  Co.  v.  Bonner,'-'-  the 
interest  preceding  the  gift  over  was  clearly  enough  vested  apart 
from  the  gift  over,  because  there  w'as  a  direct  gift  in  trust  for 
Rosalia  and  Percy  in  addition  to  a  direction  to  the  trustee  to 
convey  one  moietj-  to  Rosalia  upon  her  arriving  at  eighteen  years 
of  age,  and,  upon  her  brother's  arriving  at  the  age  of  twenty-one 
years,  to  convey  the  other  moiety  to  him.  The  gift  over  in  case 
Rosalia  died  under  eighteen  without  issue  to  Percy,  though  not 
necessarily  conclusive  that  the  two  took  vested  interests,  yet 
furnished  a  strong  argument  for  such  a  view'  because  the  gift 
over  w^ould  have  been  unnecessary  if  the  original  gift  had  been 
contingent  to  both.  Then,  too,  the  gift  over  here  was  if  Rosalia 
died  under  eighteen  and  without  issue,  which  would  indicate 
that  she  was  to  be  deprived  only  in  those  events.  Hence  she 
must  take  indefeasibly  in  all  otiicr  contingencies,  ?'.  e.,  her  in- 
terest is  vested  to  start  with. 

In  Ridgeway  v.  Underwood,^^  the  gift  over  was  of  such  char- 
acter that  an  argument  might  have  been  made  from  it  that  the 
preceding  interest  was  vested.  There  was  a  devise  to  the  seven 
youngest  children,  naming  them,  to  take  effect  at  a  future  time, 
and  then  a  gift  over  if  any  one  or  more  died  before  the  period  of 
distribution  to  the  remainder  of  the  seven.  It  is  clear  that  the 
gift  over  here  performed  no  function  at  all  unless  the  preceding 
interest  in  the  seven  children  were  vested.  Yet  the  inference 
from  this  fact  was  after  all  only  an  argument  for  vesting.     It 

i»/df.  417.  our  court   in   Lunt    v.  Lunt,  lOS  111. 

2o/<?.  417.  307,  314. 

-1  See    explanation    of    these    dis-  2275  m,  315. 

tinetions    in    Bland    v.    Williams,    3  =3  67  111.  419;  a/i/f,  §  515. 
M.  &   K.   411,  quoted   at   length   by 

601 


§519a]  FUTURE    INTERESTS  [CH.    XX 

did  iiol  require  that  the  preeetling  interest  be  regarded  as  vested. 
The  opinion  of  the  eourt,  therefore,  that  the  preceding  interest 
was  eontiiigent  simply  indicates  that  the  inference  in  favor  of 
vesting  from  the  gift  over  was  not  a  strong  one,  but  yielded 
easily  to  inferences  in  favor  of  contingency. 

In  Lunt  V.  Lnnt,-^  the  eourt  seems  to  have  drawn  from  the 
presence  of  one  gift  over,  sueh  an  argument  as  sustained  a  re- 
sult very  desirable  to  reach,  without  noticing  that  an  argument 
in  favor  of  an  opposite  result  might  equally  well  be  drawn  from 
the  presence  of  another  gift  over.  It  failed  to  observe  that  the 
inferences  from  the  gifts  over  contradicted  each  other  and  should, 
therefore,  have  been  given  no  weight.  In  that  case  the  testator 
devised  to  trustees  in  trust  as  to  four-ninths  of  the  estate  as  fol- 
lows: [4]  "when  my  said  [two]  children,  or  the  survivor,  shall 
arrive  at  the  age  of  thirty  years,  if  my  wife  still  survive,"  the 
said  four-ninths  "shall  go  to  and  vest  in  my  said  children 
equally,  [5]  or  in  the  survivor,  and  the  issue  of  the  deceased,  if 
any  exist,  equally,  [6]  or  if  both  die  leaving  issue,  then  at  such 
period  as  the  youngest  of  my  said  children  would  have  been 
thirty  years  of  age  the  same  shall  vest  in  the  issue  of  each  of  my 
children  equally,  the  children  taking  a  parent's  share,  [7]  and 
if  both  die  without  issue,  then  to  my  heirs  at  law."  It  was  held 
that  under  these  clauses  the  two  children  took  vested  interests, 
subject  to  a  postponed  enjoyment  until  they  were  thirty.  It  was 
conceded  that  by  clause  marked  4  their  interest  was  most  clearly 
contingent.  But  it  was  argued  that  it  was  vested  by  force  of  the 
gift  over  contained  in  clause  7,  which  was,  if  both  children  should 
die  without  issue  under  thirty  then  to  testator's  heirs  at  law. 
The  authorities  for  this  position  were  cited  and  there  can  be  no 
doubt  that,  from  sueh  a  gift  over,  it  may  be  argued  that,  except 
for  the  event  mentioned,  the  devisees  were  to  have  the  interest 
indicated.  The  difficulty  with  the  entire  conclusion  of  the  court 
is  that  the  gift  over  is  only  the  ground  for  an  argument  and  the 
terms  of  clause  4  are,  even  more  than  in  Ridgeway  v.  Under- 
tvoodp  against  any  vesting  of  an  interest  in  the  two  children. 
But  more  than  this,  clause  5  contains  an  argument  for  the  gift 
being  considered  contingent-"  and  the  gift  over  of  clause  6  is 
quite  as  strong  for  holding  the  gift  to  the  children  contingent  as 

24  108  111.  .307.  26  Ante,  §  343. 

25  67  111.  419,  sii/pra. 

602 


Ch.    XX]  VESTING  OF  LKCJACIES  [§520 

clause  7  is  for  holding  it  vested.  There  is  very  little  reason  for 
the  gift  over  in  clause  6,  except  upon  the  hypothesis  that  the  gift 
to  the  children  is  contingent,  since,  if  vested,  each  child's  share 
would  descend  to  her  issue  on  her  death.  The  arguments,  then, 
to  be  drawn  from  all  the  gifts  over  at  least  equalize  ea<-h  other. 
i5  520.  Inference  in  favor  of  the  gift  being  contingent, 
founded  upon  the  presence  of  a  gift  over:  -"  Suppose  the  gift 
be  to  A,  to  be  paid  at  twenly-onc,  so  that,  standing  alone,  it 
would  be  vested,  and  then  a  gift  over  be  added  to  the  issue  of 
A  in  case  A  dies  under  twenty -one  leaving  issue.  Here,  unless 
A's  interest  is  contingent  the  gift  over  would  be  unnecessary, 
since  A's  vested  interest  would  descend  to  his  issue.  We  have, 
therefore,  in  the  gift  over  an  argument  in  favor  of  holding  A's 
interest  contingent.  That  argument,  however,  is  far  from  strong 
for  the  gift  over  may  be  merely  out  of  abundant  caution  to  ex- 
press what  the  testator  desires  to  have  happen.  Then,  too,  it 
might  very  properly  be  expected  to  perform  one  function  even 
supposing  the  interest  of  A  to  be  vested.  It  would  bar  A's  wife 
of  any  share  as  an  heir  or  next  of  kin  of  A.^^ 

In  Baitta  v.  Boijdr^  Eheij  v.  Adams  ^^  and  Barnes  v.  John- 
stoii,^^  the  bequest  prior  to  the  gift  over  must,  under  the  usual 
rules  and  apart  from  the  gift  over,  have  been  vested,  on  the 
ground  either  that  there  was  a  direct  gift,  or  that  the  direction 
to  pay  at  a  future  time  was  merely  for  the  convenience  of  the 
estate  ^^  or  for  both  reasons.^^  In  each  case  the  gift  over  was 
limited,  if  the  legatee  died  before  the  period  of  distribution  leav- 
ing issue,  to  such  issue.  From  this  some  inference  could  be 
drawn  that  the  prior  legacy  was  contingent.    It  is  believed,  how- 

27  For  the  same  inference  where  -'o  135  111.  80.  See  also  Spengler 
remainders  are  involved,  see  ante,  v.  Kuhn,  212  III.  186,  194;  Security 
§§.345  ct  seq.  Ins.  Co.  v.  Kuhn,  207  111.  166. 

28  Under    Buckworth    r.    Tiiirkell,  •■i  2S.'?  111.  620. 

1  Coll.  Juris.  .322 ;  ;5  Bos.  &  Pal.  652,  "2  Ebey    v.    Adams,    1.35    111.    80, 

note;   Co.  Lit.  241a,  Butler's  note;  onte,  §  50«;   People  v.  Jennings,  44 

6   Gray's  Cases   on   Prop.,   2nd  ed.  111.    488;    Barnes    v.   Johnston,   233 

588;    1  Scribner  on  Dower,  2nd  ed.  111.  620,  ante  §§504,  506,  507. 

302;   10  Am,  &  Eng.  Enc,  2nd  ed.  ''s  Banta    v.    Boyd,    118    111.    186, 

161,  perRaps  it  does  not  bar  her  of  ante,   §  505. 
dower.     Ante,   §  484. 

■-•('lis   Til.   186.      See   also   People 
r.  Jennings,  44  111.  488. 

GO;i 


§  521]  FUTURE    INTERESTS  [CH.    XX 

ever,  that  in  the  above  cases  this  would  not  overcome  the  other 
reasons  in  favor  of  vesting. 

In  Eldred  v.  Meek,'^^  the  different  weight  to  be  attached  to 
the  presence  of  two  gifts  over  was  very  neatly  brought  out. 
There  the  trustees  M^ere  directed,  by  separate  clauses,  to  con- 
vey to  each  of  three  grandchildren  by  name  upon  such  grand- 
child becoming  twenty-five.  There  was  a  gift  over,  if  a  grand- 
child died  at  any  time  without  child  or  children  to  the  others 
who  reached  twenty-five,  and  a  further  gift  over,  if  any  died 
with  children  under  twenty-five,  to  such  children.  The  court 
held  the  gifts  to  the  grandchildren  were  contingent.  Here  it 
would  seem  to  be  clear  enough  that  the  devises  were  contingent 
in  the  first  place,  in  spite  of  the  court's  admission  that,  without 
the  gifts  over,  they  might  have  been  vested.  Assuming  that 
there  was  any  doubt  as  to  the  character  of  the  devise  from  the 
language  of  the  original  gift,  it  is  clear  that  the  first  gift  over, 
being  upon  death  without  children  at  any  time,  furnished  no 
argument  at  all  for  the  vesting  of  the  gift  to  the  grandchildren.^-'* 
On  the  other  hand,  the  second  gift  over,  if  a  grandchild  died  with 
children,  to  such  children,  furnished  a  strong  argument  that  the 
original  gift  was  contingent.^" 

§  521.  Reflecting  back  a  contingency  of  survivorship  from 
the  context  of  a  gift  over  of  what  the  legatee  would  have  taken 
if  living:  In  People  v.  Byrd,'^~  the  limitations  were  to  the  wife 
for  life,  then  to  the  testator's  children,  naming  them,  with  a 
gift  over  "if  either  of  my  said  children  [naming  them]  die 
leaving  issue,  either  before  me  or  before  my  said  wife,  then 
the  issue  of  the  child  so  dying  shall  take  the  share  which  his, 
her  or  their  parent  would  have  taken  if  living  at  her  death." 

34  183  111.  26.  In  Walker  v.  Walker,  283  111.  11, 

35  In  this  respect  the  gift  over  22,  the  gift  over  if  any  legatee  died 
here  was  different  from  the  first  before  the  period  of  distribution,  to 
gift  over  of  clause  [6]  in  Lunt  v.  his  heirs,  raised  an  inference  of  con- 
Lunt,   108  111.  307,  ante,   §  519.  tingency.     The  same  is  true  of  Sher- 

36  See  also  People  v.  Byrd,  253  man  v.  Flack,  283  111.  457,  but  in 
111.  223,  where  the  gift  over  fur-  this  case  other  considerations  war- 
nished  some  argument  for  contin-  ranted  the  holding  that  the  gift 
gency,  but  the  court  in  holding  the  was   not    contingent. 

gift   contingent   did   not   go   on   the  3V  253  111.  223. 

mere   fact   of   the   gift    over.     Post, 

S521. 

604 


Ch.    XX  1  VESTING  OP  LEGACIES  f  §  522 

It  was  held  that  the  remainder  to  the  ehildren  was  eontinijrent 
upon  their  surviving  the  life  tenant.  The  court  went  entirely 
upon  the  words  of  the  gift  over  above  italicised — that  is  to  say, 
"would  have  taken  if  living  at  her  death."  This  operated  to 
i-eflect  back,  and  by  implication  insert,  in  the  direct  gift  to  the 
cliildren  the  contingency  of  survivorship.  But  if  "taken" 
means  "taken-  possession  of,"  or  "taken  an  indefeasible  in- 
terest in,"  then  the  clause  does  not  have  any  tendency  to  reflect 
back  a  condition  precedent  of  survivorship.  It  can  only  have 
such  an  effect  if  "taken"  means  "taken  a  remainder  vested  in 
interest  in."  There  would  seem  to  be  no  more  reason  for  an- 
nexing to  the  word  "taken"  the  last  set  of  words  than  the 
former  expressions.  The  inference  in  favor  of  contingency 
fi-(mi  the  special  context  of  the  gift  over  is,  therefore,  so  slight 
and  speculative  that  it  should  hardly  have  overcome  the  strong 
inference  in  favor  of  vesting  arising  from  the  fact  that  the 
gift  was  direct  to  the  children  after  a  life  estate  so  that  the 
])ayment  at  the  future  time  was  merely  for  the  convenience 
of  the  estate.^** 

Topic  8. 
Express   Directions   as  to   Vesting. 

5;  522.  Inference  in  favor  of  contingency  where  there  is  an 
express  direction  as  to  vesting:  ■^'*  When  a  testator  expressly 
declares  that  a  legacy  shall  vest  at  a  certain  period  he  must 
ordinarily  be  taken  to  mean  that  it  shall  vest  in  interest  at 
that  time.  This  has  been  held  to  include  the  expressed  intention 
that  the  gift  shall  be  contingent  upon  the  legatees  surviving 
that  period.'*'^ 

Chapman  v.  Cheney,*'^  however,  is  a  reminder  that  tlie  word 
•'vest"  is  flexible  in  its  meaning  and,  that,  upon  the  whole 
context  of  the  will,  it  may  appear  to  refer  to  vesting  in  pos- 
session or  vesting  indefeasibly.-^^    jn  that  case  the  question  arose 

^sAnte,  §503.  111.    186,   194,    (207   111.    166);    Ben- 

39  For   such    inferences   where    re-  nett  v.  Bennett,  217  111.  4:i4,  44."^. 

niainders  of  real  estate  arc  involved,  •«i  191   111.  574. 

see  ante,  §  354.  *^  In  the  same  way  the  use  of  the 

■«o  Theobald  on  Wills,  2nd  cd.  407-  word  "vest"  in  Lunt  v.  Lunt,  108 

408.      See    Spengler    c.    Kiihu,    212  111.     307,     as     indicating     the     time 

605 


5221 


FUTURE   INTERESTS 


[Ch.  XX 


whether  the  gift  to  grandchildren  in  the  seventh  paragraph  ^s 
of  the  will  was  too  remote.  That  depended  upon  whether  it  was 
contingent  upon  the  grandchildren  attaining  thirty,  or  vested, 
subject  to  a  postponed  enjoyment  till  that  time.  The  court  was 
clear  that  by  the  principal  clause  of  the  seventh  paragraph  the 
grandchildren  took  a  vested  interest,  Avhen  born.  The  gift  after 
the  death  of  the  son,  the  life  tenant,  did  not  make  the  original 
gift  contingent,  since  the  payment  at  a  future  time  had  reference 
to  the  position  of  the  estate,  /.  c,  the  postponement  was  for  the 
convenience  of  the  estate.^^  There  was,  then,  here  a  direct  gift 
at  the  death  of  the  tenant  for  life,  with  a  subsequent  direction 
as  to  vesting  at  thirty.  There  was  much  in  this  situation  alone 
to  warrant  the  court  in  holding  that  vesting  referred  to  inde- 
feasible vesting  or  vesting  in  possession.^^  But  there  was  more 
than  this.     The  interest  which  it  was  expressly  provided  the 


wheu  the  property  should  vest  in 
possession  and  indefensibly  in  the 
testator's  children,  must  be  regard- 
ed as  depending  upon  the  effect  of 
the  gift  over  {ante,  §519),  which 
the  court  regarded  as  sufficient  to 
make  the  gift  vested  in  interest 
on  the  testator's  death  in  spite  of 
some  other  expressions  pointing  to 
a  different  conclusion. 

43  This  was,  in  part,  in  the  fol- 
lowing language:  "I  hereby  give, 
devise  and  bequeath  the  fee 
simple  title  of  all  my  lands,  lots 
and  real  estate,  wherever  situated, 
together  with  all  my  personal  prop- 
erty of  every  name,  grade  or  de- 
scription, to  my  grandchildren, 
whatsoever  number  they  may  be, 
born  to  my  said  son,  Alexander  M. 
Cheney,  share  and  share  alike,  to 
take  possession  only  after  the 
death  of  my  said  son.  *  *  * 
[Here  followed  the  gift  of  a  life 
estate  to  the  son  Alexander  M. 
Cheney,  and  the  paragraph  con- 
cluded :  1  Provided  always,  and  the 
foregoing  devise  of  the  fee  simple 
title  of  my  real  and  personal  estate 


is  and  shall  be  subject  to  the  fol- 
lowing conditions:     No  such  grand- 
child   shall    acquire    or    be    vested 
with   an    interest   or   any  estate    of 
inheritance  in  any  part  of  my  said 
real  or   personal   estate  unless  such 
grandchild    shall   live    to    reach    the 
age  of   thirty  years.     In  the  event 
that  any  such  grandchild   shall   die 
before   attaining   the   age   of   thirty 
years,    he,    she    or    they    shall    take 
nothing     under     the     provisions     of 
this  will,  neither  shall  any  interest 
in  any  part  of  my  said  real  or  per- 
sonal   estate    be    thereby    vested    in 
any   person   or  persons  through  de- 
vise,   inheritance    or    otherwise.      In 
the  event  that  any  such  grandchild 
shall    die   before   attaining   the    age 
of   thirty   years,   leaving   a   child   or 
children,     then    in     that    case    such 
child    or    children,    living    or    post- 
humous, shall  take  the  share  which 
the    parent    would    have    taken    had 
he    or    she    survived    and    attained 
the  age  of  thirty  years." 

*i  Ante,   §  50.3. 

4r.  Theobald  on  Wills,  2nd  ed.  209. 


606 


ClI.    XX J  VESTING  OF  LKGACIES  [§-323 

{iramlcliil(li'«Mi  should  not  take  unless  they  lived  to  reach  the 
age  of  thirty  years,  was  "an  interest  or  any  estate  of  inherit- 
ance." This  language  would  seem  to  refer  to  an  indefeasible 
interest  because  there  was  a  gift  over  "in  the  event  that  any 
such  grandchild  shall  die  before  attaining  the  age  of  thirty 
years,  leaving  a  child  or  children,"  to  the  child  or  children  of 
such  grandchild.  The  clause,  "In  the  event  that  any  such 
grandchild  shall  die  before  attaining  the  age  of  thirty  years, 
he,  she  or  they  shall  take  nothing  under  the  provisions  of  this 
will,  neither  shall  any  interest  in  any  of  my  said  real  or  per- 
sonal estate  be  thereby  vested  in  any  person  or  persons  through 
devise,  inheritance  or  otherwise,"  was,  considering  the  pro- 
visions regarding  the  testator's  son,  very  sensibly  interpreted 
to  express  an  attempt  to  guard  against  the  son's  inheriting  by 
the  death  of  a  grandchild  under  thirty.  It  did  not,  in  the  face 
of  the  other  clauses  of  paragraph  seven  make  the  gift  to  the 
grandchildren  contingent.^*^ 

Topic  9. 

Effect  of  the  Gift  or  Legacy  Being  to  a  Class. 

§  523.  The  general  rule  is  that  no  inference  of  contingency 
arises  from  the  fact  that  the  legacy  is  to  a  class:  Suppose  a 
gift  is  made  to  a  class  at  a  future  time,  as  at  the  death  of  a 
life  tenant,  or  upon  the  death  of  a  first  taker  under  a  certain 
age,  or  at  the  end  of  a  term  of  years  after  the  testator's  death. 
It  is  clear  that  the  class  may  open  to  let  in  others  until  the 
period  of  distribution  or  of  vesting  in  possession.'*"  To  that 
extent  the  class  is  not  ascertained  until  the  period  of  distribu- 
tion or  vesting  in  possession  arrives.  The  further  question, 
however,  frequently  arises  whether  such  gifts  are  ot^ly  to  such 
members  of  the  class  as  survive  the  period  of  distribution  or 
vesting  in  possession,  so  that  the  class  is  not  ascertained  until 
the  future  time  in  this  sense  also. 

<8  So  much  has  been  said  in  sup-  Law  Review  496)  that  the  construc- 

port    of    the    conelusicn    reached    in  tion    placed   upon   the    will   was   in- 

this    case,    because    there    has    ap-  correct — that  the  grandchildren  took 

peared     a     confident     assertion     in  a  contingent  interest. 

Notes  on  Recent  Cases  (15  Harvard  *~  Post,  §§565,  567. 

607 


§  523]  FUTURE    INTERESTS  [Ch.    XX 

The  English  authorities  seem  to  have  proceeded  on  the  basis 
that  whether  the  gift  to  the  class  at  a  future  time  was  con- 
tingent upon  the  members  surviving  the  period  of  distribution 
was  to  be  decided  as  if  the  gift  were  to  an  individual.  The 
fact  that  the  gift  was  to  a  class  did  not,  in  and  of  itself,  import 
any  argument  that  the  gift  was  contingent  on  members  of  the 
class  surviving  the  period  of  distribution.  If,  therefore,  there 
were  no  context  which  in  the  case  of  a  gift  to  an  individual 
at  the  future  time  would  make  the  gift  contingent  on  survivor- 
ship, there  would  be  no  contingency  that  the  members  of  the 
class  must  survive  the  period  of  distribution. ^"^  The  result  Avas 
that  while  the  class  might  open  to  let  in  others  until  the  period 
of  distribution  (and  in  this  sense  the  class  would  not  be  as- 
certained till  then),  yet  each  member  of  the  class  would  have 
an  indefeasible  interest  which  on  his  death  before  the  period 
of  distribution  would  be  transmissible  by  descent  or  devise."*^ 

There  is  much  in  the  decisions  of  our  Supreme  Court  to 
warrant  the  belief  that  this  is  the  proper  view  in  this  state  today. 
In  McCartney  v.  Oshurn  ^^  the  court  cited  the  leading  English 
case  of  Middleton  v.  Messenger  ^^'^  and  thus  stated  the  doctrine 
which  that  case  supports:  "Where  the  gift  or  devise  is  to  a 
class,  none  will  be  permitted  to  take  except  such  as  are  in  esse 
at  the  time  of  distribution.  This  principle,  however,  applies 
to  all  gifts  to  classes,  with  the  qualification,  that  where  the  gift 
or  devise  is  to  a  class,  as  tenants  in  common,  with  no  provision 
for  survivorship,  and  one  or  more  of  the  class  die  after  the 
gift  or  devise  has  taken  effect  in  interest,  and  before  the  time 
of  distribution,  the  shares  or  portions  of  those  so  dying  will 
go  to  their  devisees,  or,  in  case  of  intestacy,  to  their  heirs  or 
next  of  kin,  as  the  case  may  be."  Again,  the  court  says,  "after 
the  estate  has  once  vested  in  interest  except  in  cases  of  joint 
tenancy,  or  where  the  right  of  survivorship  is  expressly,  or  by 
necessary  implication,  given,  the  shares  of  such  as  die  before 
distribution   will   not   inure  to  the  benefit  of  the  survivors,  as 

48  Middleton  v.  Messenger,  5  Ves.  •'■"US  111.  40.3,  418-419. 
Jr.   136;    Holland   v.  Wood    (1870),  "'i  5  Ves.  Jr.   136. 

L.  E.  11  Eq.  91;  post,  §563. 

49  Middleton  v.  Messenger,  5  Ves. 
Jr.  136. 

608 


ClI.    XX]  VESTING  OF  LEXJACIES  [§^24 

they  would  do  if  the  estate  had  not  vested  in  interest  before 
their  deeease,  but  will  devolve  upon  the  legal  representatives 
of  those  so  dying."  The  refusal  of  our  Supreme  Court  to  per- 
mit the  faet  that  a  remainder  was  limited  to  a  class  to  be  used 
to  render  the  remainder  contingent  upon  the  remainderman 
surviving  the  life  tenant  has  already  been  noted.^-  In  the  pre- 
ceding sections  of  this  chapter  "■*  it  is  apparent  that  the  fact 
that  the  legacy  is  to  a  class  did  not  give  rise  to  any  special  in- 
ference in  favor  of  contingency.  In  Armstrong  v.  Barber  ^-'^ 
the  court  merely  intimated  that  the  rule  that  a  legacy  contained 
only  in  a  direction  to  pay  or  divide  at  a  future  time  was  prima 
facie  contingent,  applied  more  readily  where  the  gift  was  to  a 
class  than  where  it  was  not. 

§  524.  Drury  v.  Drury:  "'  In  this  case  the  court,  in  holding 
that  where  a  remainder  is  limited  to  a  class  contingently  upon 
the  life  tenant  dying  without  leaving  issue,  the  remainder  is 
also  contingent  on  the  remainderman  surviving  the  period  of 
distribution,  announced  in  nnqualiiied  terms  that  where  "a  gift 
to  a  class  is  postponed  pending  the  termination  of  a  life  estate, 
those  members  of  the  class,  and  those  only,  take  who  are  in 
existence  at  the  death  of  the  life  tenant. "  ^«  In  O'Hare  v.  Jolins- 
ton,'''  therefore,  where  the  question  was  whether  a  gift  to  grand- 
children as  a  class  thirty  years  after  the  testator's  death  was 
contingent  on  the  members  of  the  class  surviving  the  thirty 
year  period,  counsel  urged  upon  the  court  the  rule  which  it 
had  just  announced  in  Drury  v.  Drury.  This  contention  was 
not,  however,  noticed  by  the  court  in  its  opinion  and  the  legacy 
was  held  to  be  vested  in  the  grandchildren.  This  would  indi- 
cate that  whatever  the  court  may  have  done  with  regard  to 
construing  remainders  to  a  class  to  be  contingent  upon  the 
members  of  the  class  surviving  the  life  tenant  simply  because 
the  gift  was  to  a  class,  it  has  not  committed  itself  to  a  similar 
rule  where  legacies  or  gifts  of  personal  property  are  made  to 
a  class. 

62  Ante,  §  353.  in  Brewick  v.  Anderson,  267  111.  169, 

53  Ante,  §  513.  ante,   §  353,  and  Blackstone  v.  Alt- 

54  239  111.  389,  400.  house,  278  111.  481,  ante,  §  353.    See 
sr.  271  111.  336,  ante,  §  352.  also  Betz  v.  Fading,  274  111.  107. 
68  The    same    view    was   expressed  '■"  273  111.  458, 

Kales  Fut.  Int. — 39  gQg 


§  525]  FUTIIRE    INTERESTS  [CH.    XX 

Topic  10. 
Effect  to  be  Given  to  the  Testator's  Inducement. 

§  525.  What  attention  should  be  paid  to  inferences  in  favor 
of  vesting  or  contingency  derived  from  a  probable  inducement 
of  the  testator:  In  accordance  with  the  principles  of  interpre- 
tation of  writings  already  announced-''*^  the  testator's  induce- 
ment should  never  be  used  as  a  subject  or  standard  of  inter- 
pretation. Nevertheless,  courts  exhibit  from  time  to  time  a 
tendency  to  build  up  plausible  inducements  to  justify  the  re- 
sults reached.  In  Bennett  v.  Bennett  ^^  it  is  noticeable  that  the 
court  found  an  inference  in  favor  of  the  contingency  of  the  gift 
from  the  fact  that  there  was  a  purpose  on  the  part  of  the 
testator  to  protect  the  legatee's  interest  from  creditors,  but  that 
no  express  restraints  on  alienation  had  been  inserted.  Hence 
to  effect  the  purpose  as  revealed  by  the  extrinsic  circumstances, 
an  inference  in  favor  of  contingency  was  indulged  in  by  the 
court.  When,  however,  counsel  attempted  this  same  process 
in  O'Hare  v.  Johnston^''  as  an  argument  for  contingency,  the 
court  very  properly  refused  to  permit  it. 

In  the  first  opinion  in  the  O'Hare  case  the  court  said  that  if 
the  daughter  had  had  two  children  and  one  had  died  before 
the  thirty  year  peribd  leaving  children  and  the  other  had  out- 
lived the  thirty  year  period,  the  testator  could  not  have  in- 
tended the  child  outliving  the  thirty  year  period  to  take  the 
whole  trust  estate.  The  inference  was  that  the  gift  was  vested. 
In  the  petition  for  rehearing  counsel  arguing  in  favor  of  the  con- 
tingency of  the  gift  replied  that  if  the  legacy  were  vested  and  the 
testator's  only  granddaughter  died  before  she  came  of  an  age  to 
make  a  will  or  convey,  then  her  father  would  take  the  en- 
tire trust  estate,  which  was  the  last  thing  the  testator  could 
have  intended.  Of  course,  both  arguments  were  appeals  to  a 
plausible  inducement.  Both  were  equally  improper.  Counsel 
put  forward  his  speculation  as  to  the  inducement  merely  as 
an  answer  to  the  court's  speculation  as  to  the  inducement.  In 
the  opinion  of  the  court  as  it  finally  appears  it  is  said  (as  if  coun- 
sel had  been  the  first  to  introduce  an  argument  based  upon  the 

58  Ante,  §§  123,  126.  «"  273  111.  458. 

50  217   111.   434. 

610 


Ch.    XX]  VESTING  OF  LKGACIKS  (S  526 

inducement)  tluit  the  supposed  intention  of  the  testator  against 
the  son-in-law's  seiuring  the  entire  property  by  descent  from  the 
testator's  infant  granddaughter  |a  very  present  and  real  danger] 
which  would  have  occurred  if  the  legacy  were  vested,  "seems  to 
us  without  special  merit."  At  the  same  time,  the  consefpiences  of 
holding  the  legacy  contingent  which  the  court  relied  upon  to 
show  an  inducement  in  fav(u-  of  vesting,  were  regarded  as  still 
valuable  to  produce  an  inference  in  favor  of  vesting.  The 
proper  view,  it  is  submitted,  is  that  all  such  speculations  con- 
cerning the  motives  and  purposes  of  a  testator's  inducement 
should  be  rigidly  excluded. 

Toi'ic  11. 

Cases  Where  No   Question   of   Vesting   Arises  Should   He 
Carefully  Distinguished. 

§  526.  The  cases  where  there  is  a  gift  over  if  the  legatee  dies 
before  the  period  of  distribution  and  where  by  the  happening 
of  the  divesting  contingency  the  gift  over  takes  effect,  must 
be  distinguished  from  the  cases  where  the  question  is  whether 
the  future  legacy  is  subject  to  a  condition  precedent  that  the 
legatee  survive  the  period  of  distribution:  In  People  v.  Jen- 
ni7igs,^^  Banta  v.  Boyd,^>^  Eheij  v.  Adams  *'''-^  and  Barnes  v.  John- 
son,^'* the  limitations  involved  provided  substantially  for  a  life 
estate  with  a  direction  to  the  executor  or  trustee  to  sell  and  con- 
vert into  personalty  after  the  life  tenant's  death  and  to  divide 
the  proceeds  among  the  testator's  children,  with  an  express 
gift  over  if  any  legatee  died  before  the  period  of  distribution 
to  the  legatee's  children  or  heirs." ^  In  each  case  a  legatee  had 
died  before  the  life  tenant  leaving  children  who  were  claiming 
as  against  the  spouse  of  the  deceased  legatee.  Clearly  the  only 
question  involved  was  the  validity  of  the  gift  over  and  whether 
it  took  etlFect  in  the  events  which  had  happened.  Obviously  it 
was  valid  and  obviously  it  did  take  effect  in  the  events  which 

ci  44  111.  488.  distributee  died  before  the  period  of 

<••■-•  118  111.  186.  distribution  to  her  heirs,  and  where 

i'3  135  111.  80.  she   died   leaving  no  children   but  a 

6-»  2;?;5  111.  620.  husband,   and   it    was  held   that   the 

05  See  also  Walker  v.  Walker,  28.".  gift    over    took    effect    in    the    hus- 

111.  11,  where  the  gift  over  was  if  a  band. 

611 


§526]  FUTURE    INTERESTS  [Ch.    XX 

had  happened.  In  all  four  cases  it  was,  therefore,  very  properly 
held  that  the  children  of  a  deceased  legatee  took  the  whole  share 
of  the  legatee  by  virtue  of  the  gift  over  and  thereby  cut  out 
the  spouse  of  the  legatee  and  the  devisees  of  the  legatee.  Noth- 
ing could  possibly  be  plainer  or  more  correct.'^*'  There  was  no 
question  raised  as  to  whether  the  gift  to  the  children  of  the 
testator  standing  alone  was  subject  to  a  condition  precedent 
that  they  must  for  all  purposes  and  under  all  circumstances 
survive  the  life  tenant  in  order  to  take,  yet  the  language  of  the 
court  in  all  four  cases  suggested  that  the  gift  was  generally  con- 
tingent upon  the  legatee  surviving  the  period  of  distribution.*^' 
This,  it  is  submitted,  is  not  so. 

Suppose,  for  instance,  that  a  legatee  died  before  the  period 
of  distribution  leaving  children  and  that  .such  a  contingency  was 
not  provided  for.  The  gift  over  could  not  take  effect.  But  the 
legatee's  next  of  kin  would  be  disappointed  if  the  legacy  was  still 
contingent  upon  the  legatee  surviving  the  life  tenant.  Here, 
then,  the  real  question  of  whether  the  legacy  is  subject  to  a  gen- 
eral contingency  that  the  legatee  must  survive  the  life  tenant  is 
raised.  Clearly  the  postponement  was  only  for  the  convenience 
of  the  estate  and  the  one  gift  over  would  not  furnish  a  sufficient 
inference  of  contingency  to  make  the  legacy  generally  contingent 
on  the  legatee  surviving  the  period  of  distribution.  The  legacy 
should  be  called  vested  subject  to  be  divested  in  the  precise 
events  named  and  no  others,  and  the  divesting  contingency  not 
having  occurred,  the  legacy  would  remain  in  the  legatee  and 
pass  to  his  executor  or  administrator  upon  his  death  before  the 
life  tenant. 

In  Bennett  v.  Bennett  ^'^  the  legacy  was  to  a  trustee  for  A  at 
forty,  with  a  gift  over  if  A  died  before  he  reached  forty  to  his 
heirs.  A  before  reaching  forty  sued  to  end  the  trust.  It  was  a 
sufficient  answer  that  there  was  a  gift  over  to  his  heirs  so  that  the 
trustee  must  maintain  the  trust  in  order  to  serve  it.  That  was 
the  end  of  the  case,  yet  there  is  much  in  the  court's  opinion  to 
suggest  that  it  was  holding  the  legacy  to  A  contingent  on  his 
surviving  the  period  of  distribution,  wholly  apart  from  any  gift 

66  See  also   Keys  v.   Wohlgemuth,  os  217  111.  434. 

240   111.   586. 

6T  The  same  is  true  of  Walker  v. 
Walker,  283  111.  11. 

612 


Ch.    XXJ  VESTING  OF  LEGACIES  [§526 

over.  Yet  sucli  a  holding  seems  impossible  to  approve  because 
there  was  a  direct  gift  to  A  with  a  superadded  direction  to  pay 
at  the  age  of  forty.  The  trust  was  separated  from  the  re.st  of 
the  estate  and  the  income  on  the  whole  legacy  was  given  in  the 
meantime.  The  legacy,  therefore,  was  to  an  individual  and  not 
to  a  class.  All  of  these  circumstances  give  rise  to  an  overwhelm- 
ing inference  in  favor  of  the  vesting  of  the  legacy,  which  is  not 
overcome  by  anything  in  the  context.  The  case  is  likely  to  be 
misleading  because  it  seems  to  hold  the  legacy  contingent  in  the 
face  of  all  these  elements  of  context  which  usually  compel  a 
holding  that  the  legacy  is  vested.  As  a  matter  of  fact,  the  re- 
sult reached  by  the  court  is  entirely  justified  by  the  fact  that 
the  existence  of  the  gift  over  prevents  the  premature  termina- 
tion of  the  trusteeship. 

In  McXair  v.  Montague  «■•  one-half  the  real  estate  and  one-half 
the  personalty  was  devised  to  A  in  trust  for  the  benefit  of  his 
son  Charles  "until  he  shall  attain  the  age  of  fifty  years,  when 
the  same  shall  be  invested  in  the  said  Charles  T.  Montague  or  his 
legal  heirs."'  It  was  elaimed  by  Charles  that  his  interest  was 
vested  in  such  a  sense  that  he  could  terminate  the  trust  and  take 
the  property.  A  decree  sustaining  this  contention  was  entered 
finding  that  Cliarles'  interest  was  vested.  This  was  very  properly 
reversed.  Under  the  doctrine  of  Claflin  v.  Claflin  '^'^  the  trust, 
even  if  the  interest  were  vested  and  indefeasible,  could  not  be 
terminated  without  the  consent  of  the  trustee.  The  gift  over 
prevented  any  termination  of  the  trust  even  if  the  trustee  had 
been  willing.  There  was  no  ({uestion  at  all  as  to  whether  Charles' 
interest  was  vested  or  contingent  on  his  surviving  the  period  of 
distribution.  Charles'  interest  taken  by  itself  and  apart  from 
the  gift  over,  was  vested  and  not  contingent  upon  his  surviving 
the  period  of  distribution.  With  the  gift  over  it  was  still  vested 
subject  to  be  divested.  The  fact  that  a  decree  which  designated 
Charles'  interest  as  vested  was  reversed  is  likely  to  be  mislead- 
ing unless  it  is  observed  that  the  decree  which  was  reversed  in 
reality  found  Charles'  interest  not  only  vested  but  not  subject 
to  be  divested. 

In  Spencer  r.  Spencer'^  the  testator  appointed  a  trustee  to 
take  and  hold  for  Spencer  one-seventh  of  the  net  proceeds  of 

69  260  111.  465.  71  268  111.  332. 

70  Post,   §  732. 

613 


§  527]  FUTURE    INTERESTS  [CH.    XX 

his  estate  and  when  he  arrives  at  lawful  age  to  pay  him  his  share, 
with  a  direction  in  the  meantime  to  use  the  income,  or  so  much 
thereof  as  may  be  necessary,  for  the  education  and  care  of  the 
legatee,  with  a  gift  over  in  case  the  legatee  died  without  issue. 
A  decree  found  that  Spencer  had  an  absolute  interest  to  be 
paid  on  his  becoming  twenty-one,  apparently  ignoring  the  gift 
over.  This  was  very  properly  reversed  because  the  gift  over 
sliould  have  been  given  effect.  The  court  did  not  have  presented 
to  it  any  issue  of  whether  the  legacy  was  for  all  purposes  con- 
tingent on  the  legatee  surviving  the  period  of  distribution.  In 
the  face  of  the  direct  gift  with  the  superadded  direction  as  to 
payment  and  the  provision  for  the  legatee  having  the  income, 
the  court,  it  is  believed,  could  not  have  done  otherwise  than 
call  the  gift  vested  or  immediate,  subject  only  to  a  postpone- 
ment as  to  paj-ment  and  to  a  gift  over  in  the  event  specified, 
namely,  if  the  legatee  died  without  issue  before  the  period  of 
distribution.  Clearly,  if  the  legatee  had  died  before  the  period 
of  distribution  leaving  issue,  the  gift  over  would  not  have  taken 
effect,  and  since  the  legacy  was  not  contingent  on  the  legatee 
surviving  the  period  of  distribution,  the  legacy  would  have 
passed  from  him  by  descent  or  devise. 

Topic  12. 

Balancing  Inferences  For  and  Against  Vesting. 

§  527.  Cases  illustrating-  the  manner  in  which  the  foregoing- 
considerations,  or  some  of  them,  must  be  discovered  and  bal- 
anced against  each  other  in  order  to  obtain  a  result  as  to 
whether  or  not  the  legacy  is  vested  or  contingent:  The  leading 
cases  on  the  subject  of  the  vesting  of  legacies  are  examples 
of  this  process  of  balancing  conflicting  inferences."^-  O'Hare 
V.  Johnston  '^  is  presented  as  being  one  of  the  most  interesting. 
In  this  case  the  substance  of  the  gifts  in  question  may  thus  be 
stated :  The  testator  beqvieath  100  red  bonds  and  100  blue 
bonds  to  tlie  Trust  Company  upon  trust — to  invest  and  keep 

"2  Ridgeway  v.  Underwood,  67  111.  ante,  §§501,,'>12;  Aniistiong  v.  Bar- 

419,  ante,  §515;   Lunt  v.  Lunt,  108  bor,  239   111.   389,  ante,  §§509,  512, 

111.   307,   ante,   §519a;    Chapman   v.  518. 
Cheney,    191    111.    574,    ante,    §  522 ;  '  ^  273  111.  458. 

Bennett    v.    Bennett,    217    111.    434, 

.614 


Ch.    XX|  VESTING  OP  LEGACIES  I  §  527 

invested  for  the  period  of  thirty  years  from  tlie  testator's  death; 
to  pay  one-iialf  tlie  ineome  arisin*?  from  tlie  trust  fund  to  each 
of  the  testator's  two  children  William  and  Hazel;  at  the  end 
of  the  thirty  year  period  to  deliver  to  William  50  red  bonds 
and  50  blue  bonds,  or  the  proceeds  thereof;  at  the  end  of  the 
thirty  year  period  to  deliver  to  Hazel  50  red  bonds  and  50  blue 
bonds,  or  the  proceeds  thereof;  if  either  William  or  Hazel  died 
within  the  thirty  year  period  leaving  no  child  or  children  sur- 
viving, then  to  the  survivor;  if  either  died  within  the  thirty  year 
period  leaving  a  child  or  children  surviving,  then  the  testator 
directed  tliat  the  income  from  said  trust  fund  and  the  principal 
of  said  trust  fund  at  the  expiration  of  said  period,  hereby  given 
to  its  or  their  parent,  be  paid  to  said  child  or  children.  The  son 
William  died  without  issue  in  the  thirty  year  period,  then  Hazel 
died  within  the  thirty  year  period  leaving  a  child.  Was  the 
gift  to  the  child  valid?  It  Avas  conceded  that  it  was  not,  if  the 
gift  to  the  child  was  contingent  on  its  surviving  the  thirty  year 
period.    If  not  so  contingent  it  was  valid. 

The  ease  was  clearly  one  wliere  the  extrinsic  circumstances 
even  if  proper  to  be  considered,'^  afforded  no  aid  w^iatever. 
The  problem  was  as  to  the  existence  of  a  contingency  and  the 
inference  must  liave  been  that  there  was  no  actual  intent  of  the 
inducement.  If  the  court  looked  at  the  fact  that  the  holding 
of  the  ultimate  gift  void  would  throw  one-third  of  the  property 
into  the  hands  of  the  son's  widow  it  must  also  have  considered 
that  if  the  ultimate  gift  over  were  sustained  and  the  grandchild 
died  under  age  the  daughter's  husband  would  get  it  all.  If  it 
were  urged  that  the  holding  of  the  gift  contingent  would  mean 
that  one  graiidciiild  might  take  all  as  against  the  children  of 
a  deceased  grandehild,  the  answer  is  tliat  that  was  a  matter 
upon  which  the  testator'*  mind  never  worked,  for  if  it  had  he 
would  have  made  his  meaning  clear. 

Coming  to  the  context  of  the  will  itself  there  were  the  follow- 
ing considerations  in  favor  of  the  gift  being  contingent  iipon 
the  grandchildren  surviving  the  thirty  year  period : 

(1)  The  gift  was  of  personalty  and  was  contained  only  in 
the  direction   to  pay  at  a   future  time.     This  was  admittedly 

■!*  Ante,  §§  128  et  seq. 

615 


§  527]  FUTURE    INTERESTS  [Ch.    XX 

under  the  authorities  a  strong  prima  facie  argument  in  favor 
of  contingency.'^ 

(2)  The  direction  to  pay  at  the  future  time  was  not  to  ac- 
commodate a  prior  limited  interest  and  was,  therefore,  per- 
sonal to  the  legatees.""  This  the  court  denied,  insisting  that 
there  was  at  least  a  fair  argument  that  the  postponement  was 
for  the  convenience  of  the  estate.  It  was  not  quite  like  the  case 
where  the  payment  was  to  be  made  to  the  legatees  at  a  certain 
age.  These  counter-considerations  tended  at  least  to  minimize 
the  argument  that  the  postponement  was  personal  to  the  legatees. 

(3)  While  the  testator  had  the  general  spendthrift  trust  pur- 
pose (as  the  extrinsic  circumstances  showed)  there  were  no  ex- 
press restraints  on  alienation  so  that  the  protection  of  the 
legatees  could  only  be  effected  by  holding  the  gift  contingent.'^'^ 
Such  an  argument  was  really  resorting  to  the  testator's  in- 
ducement for  the  purpose  of  determining  the  tenor  of  his  indi- 
vidual standard  in  making  the  gift,  and  thus  throwing  light 
on  an  ambiguity.  The  fact,  however,  that  there  was  no  actual 
inducement  made  this  whole  process  artificial  and  speculative. 
It  was  true  that  in  Beymett  v.  Bennett,'^^  such  an  argument  had 
been  made  where  the  gift  was  to  the  legatee  at  a  certain  age, 
but  this  ease  was  very  properly  treated  as  of  only  slight,  if  any, 
influence  in  giving  force  to  a  similar  argument  attempted  to  be 
made  in  O'Hare  v.  Johnston. 

(4)  The  gift  over  in  futuro  was  to  a  class.  There  had  been 
some  recent  decisions  where  the  fact  that  a  gift  after  a  life 
estate  was  to  a  class,  had  been  used  apparently  as  the  sole  basis 
for  holding  the  gift  contingent  upon  members  of  the  class  sur- 
viving the  life  tenant.'^-'  These  are  of  very  doubtful  propriety. 
The  fact  that  the  gift  is  to  a  class  should  make  no  substantial 
argument  in  favor  of  contingency.  Jn  spite,  therefore,  of  the 
very  strong  decisions  just  made  by  the  court,  the  fact  that  the 
gift  was  to  a  class  was  properly  ignored  in  O'Bare  v.  Johnston 
as  furnishing  any  substantial  argument  in  favor  of  contingency. 

(5)  The  gift  was  not  in  a  residuary  clause.  This  made  a 
very  slight  argument  against  vesting  but  was  more  than  offset  by 

75  Ante,  %  500.  ^^  217  111.  434. 

T^Ante,  §§502  et  seq.  -J^  Ante,  §524. 

77  Ante,  §  525. 

616 


Ch.    XX]  VESTING  OF  LEGACIES  (§527 

the  fact  that  the  <iil"t  was  contained  in  a  special  trust  separable 
from  tlie  balance  of  the  estate.^" 

(6)  The  gift  to  the  children  of  the  testator,  William  and 
Hazel,  was  contingent  for  all  the  above  reasons  (except  that 
here  the  legacies  were  not  to  a  class  but  to  individuals),  and 
also  by  reason  of  the  gifts  over  if  either  child  died  leaving 
children,  and  the  scheme  of  contingent  gifts  thus  established 
made  an  argument  for  the  contingency  of  the  ultimate  gift 
which  was  part  of  the  plan.  The  difficulty  with  this  was  that 
the  argument  for  contingency  by  the  gift  over  if  +he  children 
died  leaving  children  was  offset  by  the  gift  over  if  they  died 
without  leaving  children.  Furthei-more,  the  argument  for  con- 
tingency from  gifts  over  if  the  legatee  dies  leaving  children 
is  not  very  strong  because  it  may  always  be  said  that  the  gift 
over  was  out  of  abundant  caution  and  not  because  the  gift  to 
the  first  taker  was  contingent  on  survivorship.  Again,  the  fact 
that  some  Illinois  cases  had  somewhat  over-emphasized  the 
argument  for  contingency  from  the  presence  of  gifts  over*'^ 
did  not  justify  the  court  in  a  similar  over-emphasis  of  this 
argument  in  O'Hare  v.  Johnston. 

Against  these  arguments  for  contingency  were  opposed  the 
following : 

The  principal  of  the  trust  fund  was  to  be  held  intact  and 
divided  equally  into  two  shares  at  the  period  of  distribution, 
and  the  income  of  each  share  was  to  be  paid  to  the  designated 
beneficiary  until  that  period  of  distribution. 

In  answer  to  this  the  fact  asserted  was  denied.  It  was  in- 
sisted that  since  the  testator  gave  50  red  bonds  and  50  blue 
bonds  and  the  proceeds,  to  each  trust  fund  the  trustee  must 
have  appropriated  such  bonds  specifically  upon  the  commence- 
ment of  the  trust  to  each  fund  and  each  fund  must  have  been 
held  and  distributed  at  the  period  of  distribution  separately 
from  the  other,  and  conceivably  each  fund  would  be  composed 
of  different  securities  of  different  value  at  the  period  of  dis- 
tribution. Yet  the  income  directed  to  be  paid  was  always  one- 
half  the  income  arising  from  the  entire  trust  estate.  Hence, 
it  was  contended  that  the  income  of  each  share  of  the  principal 
was  not  being  paid  to  the  beneficiary  of  the  principal   fund 

so  J;(ff,  §  516.  SI  Ante,    §§519-521. 

617 


§  527]  FUTURE    INTERESTS  [CH.    XX 

and  lieiu'o  the  gift  of  income  was  separate  and  distinct  from 
that  of  the  principal  and,  in  accordance  with  Kountz's  Estate,*^- 
the  payment  of  income  furnislied  no  argument  against  the  con- 
tingency of  the  gift.  The  court,  however,  declared  that  the 
gift  was  not  of  separable  funds  but  a  gift  at  the  period  of  dis- 
tribution of  one-half  of  the  entire  trust  estate. 

Then  it  was  insisted  that  under  certain  English  cases  the 
gift  of  income  from  an  entire  trust  fund  to  a  class  to  whom  the 
principal  was  given  at  a  future  time  did  not  prevent  the  gift 
of  the  principal  from  being  contingent.^^  These  the  court  de- 
clined to  follow,  or  perhaps  distinguished,  because  the  gift  of 
principal  was  to  children  at  a  certain  age. 

Then  it  was  contended  that  the  income  was  not  given  at  all 
until  the  end  of  the  thirty  year  period,  or  else  was  so  ambigu- 
ously given  that  it  could  furnish  no  argument  against  the  con- 
tingency of  the  gift.    Both  contentions  the  court  denied. 

It  w^as  then  urged  that  the  gift  of  income  was  only  an  argu- 
ment against  contingency  and  was  overcome  by  other  elements 
of  the  context  which  made  in  favor  of  the  contingency  of  the 
gift  as,  in  Bennett  v.  Bennett,^*  where  the  gift  was  to  an  indi- 
vidual at  a  future  time  and  income  was  given  in  the  meantime, 
and  where  the  gift  of  income  did  not  prevent  the  holding  of  the 
ultimate  gift  contingent.  But  that  was  a  case  of  the  gift  to 
an  individual  at  a  given  age,  and  moreover  the  only  point  de- 
cided was  that  the  beneficiary  could  not  terminate  the  trust 
before  the  period  of  distribution.  This  was  proper  because  of 
the  gift  over.  It  was  not  clear  that  the  court  had  meant  to 
hold  the  gift  to  the  legatee  contingent  on  survivorship  for  all 
purposes. 

Finally,  on  behalf  of  the  contingency  of  the  gift,  counsel 
relied  upon  Reid  v.  Voorhees,^^  where  a  devise  of  real  estate 
thirty  years  after  the  testator's  death,  with  the  rents  given  in 
the  meantime,  was  held  contingent  and  void.  The  answer  to 
this  case  was  that  the  context  involved  in  the  two  cases  were 
quite  different.  In  Reid  v.  Voorhees  the  court  could  find  very 
easily  a  separate  gift  of  income  and  principal,  because  in  that 
case  there  was  no  trust,  the  subject  mattpr  of  the  devise  was 

^2  213   Penn.  St.   390,  ante,  §  513.  »*  217  111.  434. 

83  Spencer  v.  Wilson,  L.  R.  16  Eq.  ^^  216  111.  236. 

501,  ante,  §  513. 

618 


Ch.    XX]  VESTING  OF  LEGACIES  [§528 

the  legal  title  to  land,  and  the  rents  were  devised  quite  sepa- 
rately from  the  prineipal. 

Sueh  is  the  proeess  of  Vnuw^  up  all  tlie  eontentions  and  ele- 
ments of  eontext  on  both  sides,  estiniatinj^  the  soundness  of  each 
and  the  weight  to  be  given  to  each,  and  striking  a  balance.  In 
any  ease  where  there  are  so  many  different  considerations  on 
each  side  to  be  examined  and  weighed  it  is  hardly  possible  that 
one  case  can  be  an  authority  for  the  result  to  be  reached  in 
another.  The  authorities  go  only  to  the  soundness  of  particular 
arguments  or  considerations  and  the  weight  to  be  given  to  par- 
ticular arguments  and  elements  of  context.  The  conclusion 
which  is  the  result  of  the  balancing  of  considerations  is  prac- 
tically outside  the  realm  of  authority. 

In  contrast  to  O'Hare  v.  Johnston  the  recent  case  of  Walker 
V.  Walker  ^"  should  be  examined.  There  personal  property  was 
bequeathed  to  trustees  to  hold  and  at  the  end  of  five  years  to 
divide  among  six  named  persons,  each  to  receive  one-half  of  his 
share,  if  living.  At  the  end  of  ten  years  the  balance  was  to  be 
divided  among  the  same  persons  with  a  gift  over  if  any  died, 
to  his  or  her  heirs-at-law.  The  only  gift  was  contained  in  the 
direction  to  pay  at  the  future  time.  Whether  the  postpone- 
ment was  personal  to  the  legatees  or  for  the  convenience  of 
the  estate  was  uncertain.'*'  The  gift  over  made  an  argument 
for  contingency.  There  was  lu)  provision  for  the  payment  of 
income  in  the  meantime.  The  result  of  holding  the  gift  con- 
tingent was  not  an  intestacy  as  to  the  income,  because  that 
would  accumulate.  The  gift  over  at  the  end  of  five  years  was 
expressly  contingent  which  might  or  might  not  raise  an  inference 
that  the  gift  at  the  end  of  ten  years  Avas  intended  to  be  the 
same.  Clearly  the  balance  of  all  considerations  was  in  favor 
of  the  position  that  the  legatees  must  survive  the  ten  year  period 
in  order  to  take.     The  court  so  held. 

TITLE  III. 

EQUITABLE  INTERESTS  IN  LAND  OR  IN  A  MIXED  RESIDUE  OF 
REAL  AND  PERSONAL  PROPERTY. 

§  528.  On  what  basis  is  the  vesting  or  contingency  of  the 
gift  of  such  interests  to  be  decided:     There   has  come   into 

R"  28;{  111.  n.  X'  Ante,  §509. 

619 


§  528]  FUTURE    INTERESTS  [Ch.    XX 

favor  a  form  of  will  which  disposes  of  a  mixed  residue  of  real 
and  personal  estate  to  trustees  upon  trust  to  hold  for  a  certain 
number  of  years  from  the  testator's  death,  or  until  some  bene- 
ficiary- reaches  a  certain  age,  then  to  divide  and  distribute.  In 
such  a  will  it  may  happen  that  the  only  gift  is  contained  in  the 
direction  to  pay,  divide  or  convey  at  the  termination  of  the  trust. 
If  a  devisee  dies  before  the  period  of  distribution  and  there  is 
no  gift  over  the  question  arises  whether  the  devise  is  contingent 
on  the  devisee  surviving  the  termination  of  the  trust.  If  the 
time  of  distribution  is  possibly  too  remote  the  question  arises 
whether  the  gift  is  immediate,  subject  to  a  postponement  until 
the  period  of  distribution.  In  such  cases  it  is  important  to 
determine  whether  the  question  presented  is  to  be  decided  upon 
the  basis  of  the  decisions  relating  to  the  vesting  of  legacies  or 
upon  the  basis  of  legal  estates  in  land.  If  analogous  limita- 
tions of  legal  interests  had  been  construed  by  the  English  com- 
mon law  courts  or  by  courts  in  this  country  and  the  construction 
had  been  settled,  it  might  be  urged  that  a  court  of  equity  in  pass- 
ing upon  equitable  interests  of  realty  should  follow  the  same  de- 
cisions. Not  only,  however,  are  such  decisions  lacking,  but  from 
the  nature  of  the  limitations  involved  the  analogy  breaks  down 
because  the  trusteeship  is  a  feature  which  could  not  be  repro- 
duced for  a  case  dealing  with  legal  interests  only.  Further- 
more, it  has  been  held  that  where  there  is  a  devise  of  a  mixed 
residue  of  real  and  personal  property  and  one  rule  of  construc- 
tion applies  as  to  real  estate  and  another  as  to  personal  prop- 
erty, the  rule  as  to  personal  property  may  be  applied  by  a  court 
of  equity  to  determine  the  construction  as  it  affects  the  entire 
mixed  fund.^^  It  is  believed,  therefore,  that  in  the  principal 
case  now  considered  the  courts  may  properly  handle  the  ques- 
tion of  construction  as  if  it  were  a  trust  of  personal  property 
alone.  This  seems  to  be  the  position  which  our  Supreme  Court 
has  taken.**^     The  court  appears  to  have  applied  the  rules  re- 

88  Ante,  §  208.  tion  to  pay  at  a  future  time  and  a 

89  Lunt  V.  Lunt,  108  111.  307;  direct  gift  with  a  superadded  direc- 
Armstrong  v.  Barber,  239  111.  389.  tion  for  distribution,  said:  "This 
But  see  McCartney  v.  Osburn,  118  distinction,  however,  by  the  current 
111.  403,  420,  where  the  court  after  of  authority,  has  no  application  to 
referring  to  the  distinction  between  a  devise  of  real  estate. ' '  And  on 
a  legacy"  contained  only  in  a  direc-  page  422,   the   court   said:    "Waiv- 

620 


Cii.  XX  J 


VESTING  OF  LEGACIES 


[55.328 


latiuK  to  ])er.sonal  property  even  where  only  equitable  interests 
in  land  were  involved."" 

In  Blanchard  v.  Mayncrd^^   only  real  estate  was  involved. 


ing  the  consideration  that  the  dis- 
tinction between  a  gift  at  a  speci- 
fied time,  and  a  gift  generally,  tn 
he  paid  at  a  like  specified  time, 
has  no  application  to  a  devise  of 
real  property,  and  applying  to  the 
limitation  under  consideration  the 
most  liberal  rule  in  favor  of  vest- 
ing, still  we  do  not  think  the  prop- 
erty in  controversy  has  yet  vested 
in  interest. ' ' 

0"  Knight  V.  Pottgieser,  176  111. 
368,  374;  Eldred  v.  Meek,  183  111. 
26,  37;  Mettler  v.  Warner,  243  111. 
600.  See  also  Pitzol  v.  Schneider, 
216  111.  87. 

f'l  103  111.  60. 

NOTE  ON  THE  PERIOD  TO 
WHICH  SURVIVORSHIP  IS  RE- 
FERRED IN  GIFTS  TO  "SUR- 
VIVORS" OR  PERSONS  "SUR- 
VIVING :  ' '  Where  property  is 
given  to  a  person  or  persons  who 
shall  be  "surviving"  at  some  pe- 
riod, and  several  periods  are  pos- 
sible, but  the  exact  time  is  not  speci- 
fied, the  question  arises  whether 
reference  is  to  the  time  of  the  death 
of  the  testator  or  some  other  period 
such  as  the  death  of  a  life  tenant. 

The  rule  of  Cripps  v.  Wolcott, 
4  Mad.  11,  is  this:  In  bequests  of 
]iersonaI  [)roperty  words  of  surviv- 
orship are  lyrimn  facie  to  be  re- 
ferred to  the  period  of  payment  or 
distribution,  and  not  to  the  death 
of  the  testator.  ^Vlule  formerly  the 
point  was  in  doubt  it  is  now  set- 
tled in  England  that  the  rule  of 
Cripps  V.  Wolcott  applies  to  de- 
vises of  real  estate :  Be  Gregson  's 
Trust  Estate,  2  De  G.  J.  &  S.  428. 
In  classifying  the  Illinois  cases  no 
attempt   is   therefore   made    to    dis- 


tinguish between  those  which  in- 
volve personalty  and  those  involv- 
ing realty. 

If  there  is  no  previous  interest 
given  then  the  period  of  division 
is  the  death  of  the  testator  and  the 
survivors  at  his  death  are  entitled. 

But  if  a  previous  life  estate  is 
given  and  the  life  tenant  survive 
the  testator  then  the  period  of  di- 
vision is  the  death  of  the  life  tenant 
and  the  survivors  at  that  time  are 
entitled:  Temple  v.  Scott,  143  111. 
290;  Jones  v.  Miller,  283  111.  348. 
In  the  following  cases  it  was  made 
clear  by  the  context  that  the  period 
to  which  survivorship  referred  was 
the  tc^-mination  of  the  preceding  life 
estate:  Haward  v.  Peavey,  128  111. 
430;  Mittel  v.  Karl,  133  111.  65; 
Chapin  v.  Crow,  147  111.  219 ;  Madi- 
son V.  Larmon,  170  111.  65;  Starr  v. 
Willoughby,  218  111.  485.  Where 
the  period  of  distribution  was  when 
a  person  reached  a  given  age, 
' '  surviving ' '  meant  surviving  at 
that  time:  Moroney  v.  Haas,  277 
111.  467. 

WTiere  there  is  a  gift  to  take  ef- 
fect at  a  future  time  limited  to  the 
surviving  members  of  a  class,  or 
to  persons  named  and  the  survivors 
of  them,  the  survivors  are  those 
who  outlive  the  period  of  distribu- 
tion. This  is  moat  clearly  true 
where  there  is  a  shifting  devise  over 
to  the  survivor  or  sur\'ivors  of  a 
class  to  which  the  first  devisee  be- 
longs: Duryea  r.  Duryea,  85  111. 
41;  Lombard  r.  Witbeck,  173  111. 
.396;  Summers  r.  Smith,  127  111. 
645,  650;  Hull  r.  Ensinger,  257  111. 
160.  It  is  equally  true  where  there 
has    been    no    previous    gift    to    the 


621 


§528] 


FUTURE    INTERESTS 


[Ch.  XX 


The  will  in  question  devised  both  real  and  personal  property 
to  trustees  for  ten  years.  The  only  gift  of  lands  was  in  the 
direction  to  the  trustee  "at  the  end  of  ten  years  after  my 
decease,  all  of  my  said  estate  then  remaining,  and  the  income 
thereof,  shall  be  distributed,  and  shall  vest  in  my  three  sons" 
naming  them.  If  the  considerations  applicable  to  legal  in- 
terests in  land  had  been  followed  the  court  might  well  have 
said  that  the  fact  that  the  only  gift  was  in  the  direction  to 
divide  at  a   future  time  did  not   introduce  a  contingency  of 


members  of  a  class  to  the  surviv- 
ors of  which  the  gift  in  question  is 
made:  Ridgeway  v.  Underwood,  67 
111.  419,  424,  425;  Blatchford  v. 
Newberry,  99  111.  11;  Blanchard  v. 
Maynard,  103  111.  60;  Cheney  v. 
Teese,  108  111.  473,  482. 

Where  a  devise  was  made  to  a 
married  woman  if  she  survived  her 
husband,  she  was  entitled  if  she 
surN-ived  the  termination  of  the  mar- 
riage, so  that  upon  a  divorce  the 
wife's  interest  vested  indef easibly : 
Gary  v.  Slead,  220  111.  508. 

Prior  to  Cripps  v.  Wolcott  the 
rule  seems  to  have  been  contrary 
to  what  was  laid  down  in  that  ease, 
by  a  long  line  of  decisions  (2  Jar- 
man  on  Wills,  6th  ed.,  Bigelow,  star 
pages  1533-1544)  and  survivorship 
was  regularly  referred  to  the 
death  of  the  testator,  unless  a  dif- 
ferent intent  appeared.  This  seems 
to  have  been  the  position  approved 
and  followed,  and  in  fact  neces- 
sary to  the  decision  in  Hempstead 
V.  Dickson,  20  111.  193.  There  are 
some  expressions  of  the  Court  ap- 
proving the  same  doctrine  in 
Arnold  v.  Alden,  173  111.  229,  241. 
They  were,  however,  unnecessary  to 
the  decision.  See  also  Siddons  v. 
Cockrell,  131  111.  6o5 ;  Fishback  v. 
Joesting,  183  ID.  463,  466. 

The  general  rule  of  course  gives 
way  when  there  is  a  different  pe- 
riod  to  which  survivorship  must   be 


referred  by  the  expressed  context  of 
the  ingtrument.  Thus,  in  NicoU 
V.  Scott,  99  111.  529;  Grimmer  v. 
Friederich,  164  111.  245  (cited  with 
approval  in  Clark  v.  Shawen,  190 
111.  47,  55),  and  Arnold  v.  Alden, 
173  111.  '229,  the  context  may  have 
indicated  that  survivor  referred  to 
those  who  survive  the  testator.  The 
language  of  the  will  in  Grimmer 
V.  Friederich  is  to  "  my  surviving 
children ' '  and  in  Arnold  v.  Alden 
it  is  to  "my  surviving  brothers  and 
sisters. ' '  The  expression  in  both 
these  cases  is  very  like  the  language 
from  which  the  inference  was  made 
in  Shailer  v.  Groves,  6  Hare  162 
(2  Jarman  on  Wills,  6th  ed.,  Bige- 
low, star  page  1548)  that  survivor- 
ship must  be  referred  to  the  testa- 
tor's death. 

In  Grimmer  v.  Friederich  the 
court  reached  the  conclusion  that 
survivorship  referred  to  the  death 
of  the  testator  because  of  the  words 
' '  and  their  heirs ' '  in  the  gift  to 
"my  surviving  children  and  their 
heirs."  In  Theobald  on  Wills,  2nd 
ed.  510,  it  is  suggested  that  per- 
haps the  addition  of  such  words 
would  be  sufficient  to  make  sur- 
vivorship refer  to  the  death  of  the 
testator,  but  in  the  last  (6th  ed.) 
of  the  same  work,  the  English  cases 
standing  for  such  a  result  are  put 
down  as  inconsistent  with  the  cur- 
rent of  authority. 


622 


ClI.    XX  J  VESTING  OF   LEGACIES  (§528 

survivorship  as  in  tlie  case  of  lej^acies;  tluit  "vest  might  mean 
vest  in  possession,"  and  even  if  it  meant  "vest  in  interest"  that 
was  fulfilled  if  the  interest  vested  at  the  end  of  the  ten  year 
period  with  or  without  any  contiiif^ency  of  survivorship;  that 
the  equitable  interest  in  tlu'  land  was,  therefore,  a  certain  ex- 
ecutory interest  which  would  descend  upon  the  death  of  the 
executory  devisee,  but  the  widow  would  not  have  dower  in  it 
because  tliere  was  no  seisin  of  the  future  interest.  That  would 
be  consistent  with  the  holding  of  the  court.  The  court,  how- 
ever, said  tiiat  the  executory  devisee  did  not  take  an  interest 
which  was  descendible  and  the  inference  is  that  it  held  the  gift 
at  the  end  of  the  ten  year  period  contingent  on  the  devisee 
surviving  the  termination  of  that  period.  If  so,  the  court  was 
clearly  applying  the  rules  relating  to  gifts  of  personal  property. 


623 


CHAPTER  XXL 

GIFTS  OVER  UPON  THE  "DEATH"  OF  A  PREVIOUS 

TAKER  SIMPLICITER  OR  "WITHOUT  CHILDREN," 

OR  "WITHOUT  ISSUE,"  OR  "WITHOUT  HEIRS." 

TITLE    I. 
TO  WHAT  PERIOD  IS  "DEATH"  EEFERRED.i 

§  529.  Limitations  by  will  to  A  simpliciter  followed  by  a 
gift  "at  his  decease:"  Here  A  regularly  takes  a  life  estate 
and  "die"  means  die  at  any  time  before  or  after  the  testator's 
death. - 

§  530.  Limitations  by  will  to  A  simpliciter  followed  by  a 
gift  "in  case  of  his  death,"  or  some  other  expression  treating 
A's  death  as  a  contingent  event:  The  extent  to  which 
"death"  in  such  cases  is  referred  to  death  in  the  lifetime  of 
the  testator  only,  has  already  been  indicated.^  If,  however,  it 
appears  that  A  has  a  life  estate  independent  of  any  gift  over 
"in  the  event  of  his  death,"  "death"  refers  to  the  death  of 
the  life  tenant  whenever  that  occurs.^  Where  it  is  clear  that 
death  refers  only  to  death  in  the  lifetime  of  the  testator,  the 
question  may  arise  whether  death  before  as  well  as  after  the 
will  was  executed  is  referred  to.  In  Jenne  v.  Jenne,^  where  the 
bequest  was  to  the  testator's  three  half  sisters,  and  "in  the 
event  of  the  death  of  one  or  all"  to  their  legal  heirs,  it  was 
held  that  death  referred  to  death  before  as  well  as  after  the 
will  was  executed. 

§  531.  Where  the  limitations  are  by  will  to  A  simpliciter 
with  a  gift  or  gifts  over  on  A's  death  and  one  or  more  col- 
lateral contingencies:     Whether  A  takes  an  absolute  interest 

1  See  oases  cited,  anle,  §§  162-167.  aemhle;    Sheloy    v.    Sheley,    272    III. 

"^  Ante,   §162.  95,    97,    semblc ;    Jenne    v.    .Teinie, 

3  Anle,  §  163.     See  also  Kohtz  v.  271  111.  526,  fiemhJe. 

Eldred,  208  111.  60,  semble;  Lachen-  •»  Kolb  v.  Landes,  277  111.  440. 

myer   v.  Gehlbach,  266  111.    11,   15,  ^  271   111.  526,  ante,  §  163. 

624 


Ch.    XXI]     GIFTS   OVER    Ul'ON    DEATH    WITHOUT    ISSUE  [§531 

or  only  a  life  estate  has  already  been  considered."  If  it  be  de- 
termined that  A  takes  only  a  life  estate  then  clearly  "die" 
refers  to  the  death  of  the  life  tenant  whenever  that  may  occur."^ 
Even  where  it  is  determined  that  A  takes  the  fee  or  an  absolute 
interest  the  settled  rule  now  is  that  prima  facie  "death"  refers 
to  death  at  any  time,  either  before  or  after  the  testator's  death.8 

Where  the  gift  is  to  several  with  a  gift  over  if  any  die  with- 
out leaving  children  or  issue  surviving,  to  the  "survivors,"  the 
period  to  which  die  refers  is  complicated  with  the  meaning 
of  "survivors."  If  "survivors"  has  its  primary  meaning  and 
refers  to  survivors  "at  the  period  of  distribution,"  then  "die" 
must  have  its  primary  meaning  as  referring  to  death  at  any 
time,  either  before  or  after  the  testator's  death.»  But  if  upon 
any  special  context,  or  even  without  a  special  context  and  in 
contravention  of  the  general  rule,  it  is  determined  that  "sur- 
vivors" means  those  wlio  survive  the  testator,  then  an  inference 
arises  that  "die"  should  be  confined  to  death  in  the  lifetime  of 
the  testator.  1" 

In  Fishhack  v.  Joesiing  ^^  the  devise  was  to  the  testator's 
wife  and  child  or  children,  or  their  heirs  who  might  be  living 
at  his  death,  but  if  he  and  his  wife  and  his  child  or  children 
should  all  die  and  there  should  be  no  heirs  of  the  children,  then 
it  shovild  go  to  others.     Here  the  special  context  and  partic- 

*i  Ante,   §§164-165.  9  Wilson  v.  Wilson,  261  111.   174; 

7  King    V.    King,    215    111.     100;  Carpenter    v.    Sangamon   Trust   Co., 

Branson  v.  Bailey,  246  111.  490.  229  111.  486;  Summers  v.  Smith,  127 

sBlaekstone  v.  Althouse,  278   111.  HI.  645. 

481;    Ashby   v.  MeKinlock,   271   111.  lo  Arnold  v.   Alden,   173   111.   229, 

254;  Wilson  v.  Wilson,  261  111.  174;  241.     In  Duryea  v.  Duryea,  85   111. 

Brenock    v.   Brenock,   230   111.    519;  41,  it  is  submitted  that  "die"  was 

Crocker  v.  Van  Vlissingen,  230  111.  referred  to  death  at  any  time  and 

225;   Carpenter    v.   Sangamon   Trust  "survive"   in   the   gift  over   to  the 

Co.,    229    111.    486;    Fifer    v.    Allen,  survivor  was  referred  to  the  period 

228    111.    507;    Bradsby    v.    Wallace,  of   distribution   after  the   testator's 

202  111.  2.".9;   Tiiomas  r.  Miller,  161  death.     The  decree  was  based  upon 

111.   60;   Smith   v.   Kimbell,   153   111.  the  fact  that  there  was  no  survivor 

368;    Summers    v.    Smith,    127    111.  when    the    first    taker    died    without 

645,  issue  and  hence  the  gift  over  failed 

Wliero  the  limitations  are  creatc<l  and    under    such    circumstances    the 

by    deed    "die"   refers    to    the    pe-  absolute     interest     which     the     first 

riod    after    the    deed    is    executed:  taker    had    was    not    divested.      See 

Buck  V.   Garber,   261   111.   378,   380;  lost,  §606. 

Kobeson  v.  Cochran,  255  111.   355.  "  183   111.  463,  466. 
Kales  Fut.  Int. — 40                            025 


§532]  FUTURE    INTERESTS  [Cll.    XXI 

iilarly  the  emphasis  in  the  gift  to  those  who  were  to  be  living 
at  his  death,  was  sutTleient  to  raise  a  prevailing  inference  that 
"die"  referred  to  death  in  tlie  lifetime  of  the  testator.  Kohtz 
I'.  Eldred  ^-  is  now  only  justified  upon  the  special  context  pre- 
sented.^■'  In  ]Vil,li(n)fson  v.  Carncs  ^^  a  residue  was  devised  to 
sons  and  daughters  A\ith  a  gift  over  if  any  died  before  the  tes- 
tator and  left  a  child,  to  such  child,  but  if  any  died  without 
children  (not  saying  before  the  testator)  then  over.  It  was 
held  upon  the  special  context  that  "die"  in  the  clause  "die 
without  children"  meant  die  only  in  the  lifetime  of  the  testator. 

i;  532.  Where  the  limitations  are  by  will  to  X  for  life,  then 
to  A  simpliciter,  with  a  gift  or  gifts  over  on  A's  death  and  one 
or  more  collateral  contingencies — The  rule  of  the  English  cases : 
If  there  is  only  one  gift  over,  or  the  gifts  over  are  on  contin- 
gencies which  do  not  exhaust  all  the  possibilities,  "die"  refers 
to  death  at  any  time  before  or  after  the  testator's  death  and 
after  the  death  of  the  life  tenant.'"'  Where  the  gifts  over  are 
upon  contingencies  which  exhaust  all  the  possibilities  so  that 
an  inference  arises  that  the  first  taker,  A,  has  only  an  estate  for 
life,  "die"  necessarily  refers  to  death  at  any  time,  even  after 
the  life  tenant's  death,  for  otherAvise  all  the  possibilities  would 
not  be  exhausted.'"  But  if  the  interest  of  the  first  taker,  A,  is 
created  with  express  words  indicating  that  he  is  to  have  a  fee 
or  absolute  interest,  with  gifts  over  which,  if  they  exhausted 
all  the  possibilities,  would  cut  down  the  fee  to  a  life  estate,  an 
inference  arises  that  "die"  means  only  die  before  the  period 
of  vesting  in  possession,  so  that  all  the  contingencies  will  not 
have  been  provided  for  and  an  inconsistency,  due  to  the  express 
direction  that  A  is  to  have  a  fee  or  absolute  interest,  avoided.'" 

^  533.  The  position  of  our  Supreme  Court  is  somewhat  in 
doubt:  In  Welch  v.  Crowe  "^  it  was  held  that  where  words  were 
used  indicating  that  A  was  to  have  a  fee  simple  and  the  gifts 

1-208  111.60.  Cas.     388     (1874),     overruling     the 

13  See  Mr.  Justice  Cartwright's  fourth  canon  of  Edwards  v.  Ed- 
explanation   of   Kohtz   V.   Eldred  in       wards. 

Fifer  v.  Allen,  228  111.  507,  520.  i«  Hawkins  on  Wills,   2nd  ed.   by 

14  284  111.  521.  "        Sanger,  310. 
^■'Ante,    §§166,    167;    O 'Mahoncy  ^^  Id.  309. 

r.  Burdett,  L.  R.  7;  Eng.  &  Ir.  A|.p.  18  278  111.244. 

626 


Ch.  XXIJ    gifts  over  ui'On  dkatii  without  issue  [§533 

over  were  on  continfreiK'ies  which  exhausted  all  the  possibilities, 
"die"  meant,  die  only  prior  to  the  deatli  of  the  life  tenant.''' 

In  Lachenmyer  v.  Gehlhach,'^"  where  the  gifts  over  exhausted 
all  the  possibilities  the  same  result  was  reached  although  the 
limitation  was  to  A  simplicUer.  Under  our  practice  and  section 
13  of  the  Conveyancing  Act,  however,  it  might  be  regarded 
as  justifiable  to  take  the  limitation  to  A  simplkiter,  as  if  it 
were  the  express  creation  of  a  fee  simple.  Kleinhans  v.  Klein- 
hans,-^  decided  shortly  before  Lachenmijer  v.  Oehlhach  seems 
inconsistent  with  it.  In  Klrinhcns  r.  Kleinhans  the  first  gift 
was  to  A  sinipliciler,  but  the  court  held  that  "die"  meant  die 
at  any  time,  eveu  after  the  death  of  the  life  tenant  and  hence 
all  the  contingencies  were  provided  for  and  A  had  only  a  life 
estate. 

Our  Sui)i('me  Court  has  held,  in  accordance  with  the  English 
eases,  that  where  the  limitations  were  to  A  sitnpliciter  with  a 
single  gift  over,  "die"  meant  die  at  any  time  before  or  after  the 
testator's  death.  In  Gavvin  v.  Carroll—  the  devise  after  the 
life  estate  was  to  an  individual  with  a  single  gift  over  "should 
he  die  without  issue,"  to  the  testator's  children  surviving  at 
the  death  of  the  first  taker.  It  was  held  that  "die"  meant, 
die  at  any  time,  even  after  the  death  of  the  life  tenant.  This 
was  deduced  fi'om  the  cases  like  Fifer  v.  Allen,'^^  where  there 
was  no  preceding  life  estate.  This,  of  course,  followed  the  Eng- 
lisli   authorities. 

Subsequently,  however,  to  Lachenmyer  v.  Gehlhach  and  be- 
fore and  after  Gavvin  v.  Carroll,  we  have  in  this  State  cases 
where  there  was  only  a  single  gift  over  and  where  the  court, 
purporting  to  follow  Lachenmyer  v.  Gehlhach,  held  that  "die" 
meant,  die  before  the  death  of  the  life  tenant  and  that  only. 
Thus,  in  Sheley  v.  Sheley  -*  the  remainder  after  the  life  estate 
was  to  the  testator's  "children,  share  and  share  alike,  and  if 
any  one  or  more  of  them  die  without  an  issue,  then  their  share 

19  In    Chaiiin    r.    Crow,    147    111.  the   life   of   the   life   tenant    give   a 

219,    the    holding    was   merely    that  merchantable  title, 
"die"    meant    at    least,    die    after  -'«>  266  111.  11. 

the  testator 's  death  and  before  the  -i  2.=>3  111.  620. 

death  of  the  life  tenant,  so  that  the  --  276  111.  478. 

devisee  in  remainder,  who  was  sul)-  -'-^Ante,  §531. 

jeet  to   the  gift   over,   oould   not   in  -*  272  111.  9,'). 

IV2T 


§  534]  FUTUKE    INTERESTS  [Cn.    XXI 

shall  revert  back  to  my  estate  and  be  divided  equally  between 
all  the  surviving  heirs."  This  was  regarded  as  "in  almost  the 
identical  language  of  the  devise"  involved  in  Lachenmyer  v. 
Gehlbach,  and  "die"'  -was  referred  to  death  prior  to  the  death 
of  the  life  tenant. 

In  three  still  more  recent  eases  where  the  limitations  were  to 
X  for  life,  remainder  to  A,  with  a  gift  over  on  A's  death,^^  or 
death  without  issue  surviving,-«  "die"  was  held  to  mean,  die 
in  the  lifetime  of  the  life  tenant  and  not  afterwards.  It  is  sub- 
mitted that  in  Skeley  v.  Sheley  and  the  cases  following  it,  the 
court  overlooked  the  significance  of  the  fact  that  in  Lachenmyer 
V.  Gehlhach  there  were  gifts  over  which  exhausted  all  the  pos- 
sibilities, and  that  under  the  statute  an  inference  arose  that  A 
took  a  fee. 

In  Smith  v.  Ddlitt  -'  "die"  was  held  to  mean,  die  only  before 
the  death  of  the  life  tenant,  and  this  was  placed  on  the  special 
context,  as  follows:  A  life  estate  was  devised  to  the  husband, 
with  a  remainder  in  fee  to  his  daughters,  with  a  gift  over  if 
either  daughter  died  without  a  child  to  the  survivor,  and  should 
both  die  without  children,  the  whole  estate  to  go  to  "the  father 
or  his  heirs."  It  was  held  that  the  words  "or  his  heirs"  should 
be  construed  "and  his  heirs,"  and  that,  therefore,  the  context 
indicated  that  the  death  of  the  daughters  referred  to  must  occur 
only  before  the  father's  death. 

§  534.  Some  results  reached  by  our  Supreme  Court  are 
supported  by  definite  special  contexts:  In  some  cases  the 
context  is  explicit  that  "  die  "  means  die  before  the  life  tenant. ^^ 
In  Siddons  v.  Cockrell  -•'  and  Northern  Trust  Co.  v.  Wheaton  ^^ 
on  the  special  context  "death"  was  held  to  refer  only  to  death 
in  the  testator's  lifetime.  In  Northern  Trust  Co.  v.  Wheaton, 
where  the  gift  over  was  if  any  devisee  should  die  before  the 
interest  "shall  vest  in  them,"  the  court,  by  interpreting  "vest" 
in  the  feudal  sense  of  an  interest  after  a  particular  estate  of 
freehold  which  stood  ready  to  take  effect  whenever  and  however 
the  preceding  estate  determined,  necessarily  concluded  that  vest- 
as Ames  V.  Smith,  284  Til.  6:5  28  Barnes  v.  Johnston,  233  111. 
fhere  the  limitations  were  by  deed).       620;   People  v.  Bynl,  253  111.  223. 

2«Fulwiler     v.    McClun,    285     111.  -■'•' 131  111.  653. 

174;  Morris  v.  Phillips,  287  111.  633.  ."o  249  111.   606,  613-614. 

27  249  111.  113. 

628 


Cil.    XXI  j      (ilKTS    OVKK    l-|'().\    DKATII     WITIIOLT    ISSTK  |  Ji  536 

iii}^  occurred  at  the  testator's  death  and  hence  deatli  l)efore 
vesting  meant  death  before  the  testat(n-  and  that  only. 

In  Pirrung  v.  Pirrung  "'^  the  limitations  Avere  to  the  widow 
for  life,  then  to  the  testator's  two  sons,  and  in  case  either  shall 
not  survive  the  widow,  the  survivor  to  take  all.  One  son  died 
before  the  testator  and  befoi-e  the  widow  leavin«,'  cliildren.  It 
was  held  that  "die"  meant  die  only  after  the  testator's  death 
and  not  befoi-e.  Therefore,  the  event  which  happened  was  not 
provided  for  and  hence  the  gift  lapsed  and  the  children  of  the 
deceased  son  took  under  section  11  of  the  Statute  on  Descent. 
The  result  was  obviously  desirable,  but  the  construction  rested, 
it  is  believed,  more  on  a  speculation  as  to  the  inducement  of 
the  testator  than  on  any  context  of  the  will. 

In  Ahrahatus:  v.  Sanders,'-'--  whei-e  the  limitations  were  to  X 
for  life  with  a  remainder  to  several,  and  if  any  died  "before 
this  will  takes  effect"  over  to  othei-s,  tiie  court  held  on  the  spe- 
cial context  that  "before  this  will  takes  effect"  meant  before 
the  death  of  the  life  tenant  and  not  merely  before  the  testator's 
death. 

§  535.  Where  the  limitations  are  to  X  for  life,  then  to  A  for 
life  and  in  case  of  A's  death  and  on  the  happening-  of  a  col- 
lateral contingency  over:  Here  it  might  be  supposed  that 
"die"  at  least  referred  to  the  death  of  A  at  any  time,  because 
A  was  only  a  life  tenant.-*^  In  Winter  v.  Dihhle,^*  however,  the 
court,  guided  by  special  elements  of  context,  held  that  "die" 
referred  to  death  only  in  the  life  time  of  the  first  life  tenant  X, 

§  536.  Where  property  is  vested  in  trustees  who  are  di- 
rected to  distribute  at  a  certain  time,  so  that  the  trust  then 
determines  and  the  legatees,  vi^ho  are  to  take  upon  the  death 
of  prior  legatees,  are  to  do  so  through  the  medium  of  a  con- 
veyance  from  the  same  trustees:  Here  there  is  prima  facie 
a  sufficient  reason,  according  to  the  English  authorities,  to  re- 
strict "death"  to  death  before  the  time  of  distribution. ^^  Thi^ 
rule  has  been  followed  recently  by  our  Supreme  Court. ^^^     But 

31228  111.  441.     To   the   same  ef-  •''^251   111.  200,  217,  218. 

feet   is    Frail   r.   Carstairs,    187    111.  ^^  Theobald  on  Wills,  7th  ed.  662. 

•■no.  •■•'■.  Spencer  v.  Spencer,  268  111.  332. 

32  274  111.  452. 


33Kolb   V.    Landes,   277    111.    440, 

629 


nnte^   §  530. 


§  o37]  FUTURE    INTERESTS  [Ch.    XXI 

the  court  seems  to  have  overlooked  this  consideration  in  a  still 
more  recent  case."^" 

5j  537.  Limitations  by  will  to  A  at  a  period  of  distribution 
after  the  testator's  death  with  a  gift  over  if  A  dies  before  the 
period  of  distribution:  Here  it  is  explicit  that  "die"  refers 
to  death  after  the  testator  and  before  the  period  of  distribution. 
It  is  held  that  "die"  also  means  die  before  the  testator's  death, 
so  as  to  prevent  a  lapse.^^ 

TITLE    II. 

MEANING  OF  "WITHOUT"  IN  GIFTS  OVER  IF  THE  FIRST 
TAKER  DIES  "WITHOUT  CHILDREN." 

§538,  Two  possible  meanings  of  "without":  It  may  mean 
"without  ever  having  had,"  or  "without  children  surviving" 
the  first  taker.  Of  course,  an  additional  context  may  make 
either  one  of  these  meanings  explicit.  It  is  easy  to  construe  the 
phrase  "without  having  any  child"  as  equivalent  to  "without 
having  had  any  child. ' '  ^^  On  the  other  hand,  if  the  gift  over 
is  upon  the  death  of  the  first  taker  ' '  without  leaving  any  child 
at  his  death,"  or  "without  leaving  any  child  him  surviving," 
"without"  cannot  mean  "without  having  had."^'^  In  the  ab- 
sence of  explicit  contexts  controlling  the  meaning  of  the  word 
"without"  the  following  important  distinctions  are  to  be  ob- 
served. 

§  539.  If  there  is  no  independent  gift  to  the  children  of  the 
first  taker,  "without"  means  primarily  "without  children 
surviving"  the  first  taker:  Where  there  is  a  gift  to  A  abso- 
lutely and  a  gift  over  on  his  death  without  "leaving"  children, 
the  word  "leaving"  will  cause  the  gift  over  to  take  effect  if  A 
dies  leaving  no  children  surviving  him  at  his  death.'*  ^  The 
same  result  is  reached  if  the  gift  over  is  upon  the  first  taker's 
death  "without  any  children."  4-  So  where  a  life  estate  is 
devised  to  A  with  no  gift  expressly  or  by  implication  to  A's 
children,  but  with  a  gift  over  if  A  "die  without  children," 
"without"  means  primarily  "without  children  surviving"  A."*^ 

37  Defrees  v.  Brydon,  275  111.  5:^0.  "i  -yhcobald  on  Wills,  7th  ed.  706- 

38  Walker  v.  Walker,  2813  111.   11.  707;  Smith -y.  Kimbell,  15:^  111.  368. 

39  Theobald  on  Wills,  7th  ed.  707.  ♦2  Theobald  on  Wills,  7th  ed.  707. 
See  Kellett  v.  Shepard,  1:^9  111.  ilV-i.  ".f  Bond  v.  Moore,  236  111,  576, 

4"  Theobald  on  Wills,  7th  ed.  706, 

630 


CU.    XXI]     GIFTS   OVER    UI'ON    1)P:aTI1    WITHOUT    ISSUE  [§542 

S<  540.  When  there  is  an  independent  gift  to  the  first  taker's 
children  or  issue,  so  that  a  child  upon  birth  acquires  a  vested 
interest,  "without"  may  mean  "without  ever  having  had": 
Thus,  if  the  gift  to  the  first  taker  is  for  life  and  there  is  an  ex- 
press gift  to  the  eliildreii  of  the  life  tenant  wiiich  i's  vested  at 
onee  on  their  l)irth,  oi-  on  tlieir  reaehing  twenty-one,  or  other 
age  or  event,  the  p]nglish  eases  hold  that  a  gift  over  if  the  first 
taker  die  "without  leaving"  children  or  issue,  means  "with- 
out having  had"  such  children  or  issue  as  have  taken  a  vested 
interest.  This  prevents  the  divesting  of  an  interest  once  vested 
in  a  child.^^  In  the  case,  therefore,  where  the  children  take 
vested  interests  at  birth,  the  phrase  "die  witliout  leaving" 
children  or  issue  will  mean  "die  without  ever  having  had" 
children  or  issue,  as  the  case  may  be.-»''  If,  however,  the  chil- 
dren do  not  take  vested  interests  till  they  reach  twenty-one 
then  '  *  die  without  leaving  children ' '  means  ' '  die  without  having 
children  who  have  attained  twenty-one."  In  King  v.  King,*^ 
however,  our  Supreme  Court  undertook  to  hold  that  even  in 
this  case  "without"  meant  "without  ever  having  had"  any 
children  at  all. 

§  541.  Where  there  is  an  independent  gift  to  the  first  taker's 
children  contingent  upon  their  surviving  the  first  taker,  a  gift 
over  if  the  first  taker  "die  without  children"  means  die  with- 
out children  surviving  the  first  taker:  This  was  the  result 
reached  in  BlakcUij  v.  Mansfield:^'  It  follows  the  English 
cases.^® 

TITLE  III. 

MEANING  OF  "WITHOUT  ISSUE"  IN  GIFTS  OVER  IF  THE  FIRST 
TAKER  DIES  WITHOUT  ISSUE. 

^  542.  There  are  three  possible  meanings  of  the  phrase  "die 
without  issue":  It  may  mean  (a)  "die  without  ever  having 
had  issue,"  or  (1))  "die  without  issue  surviving  the  first  taker." 

44  Theobald  ou  Wills,  6th  ed.  676 ;  it  be  applicable  where  the  phrase  is 
7th  ed.  715.  "die  without  children,"  the  dictum 

45  Treharne  i'.  Layton,  L.  R.  10  of  the  court  in  Field  v.  Peeples,  180 
Q.  B.  459  (1875).  It  is  doubtful  111.  ;576,  may  be  sustained.  See  also 
whether  it  can  be  adoj^ted  as  a  pri-  Voris  r.  Sloan,  68  111.  588. 

mary   meaning   where   the   phrase  is  4r,  215  111.  100. 

"without  any  child."      (Thicknesse  ■'■274   111.    VM^. 

V.  Liege,  3  Brown  P.  Cas.  365.)     If  48  Theobald  on  Wills,  7th  ed.  706. 

631 


I  543]  FUTURE    INTERESTS  [Ch.    XXI 

or  (e)  "be  dead  without  issue  in  any  generation,  however  re- 
mote." The  second  is  known  as  a  definite  failure  of  issue,  and 
the  third  as  an  indefinite  failure.  Of  course,  the  context  may 
cause  any  one  of  these  meanings  to  be  explicitly  indicated— as 
Avhere  the  gift  over  is  on  the  first  taker's  death  without  issue 
him  surviving,^'-^  or  "without  issue  living  at  his  death,"  or 
"without  living  heirs  of  his  body."^" 

^  543.     Where  there  is  an  independent  gift  to  the  issue  of 
the  first  taker  which  vests  an  interest  in  such  issue  as  soon  as 
born:     Under  such  circumstances  w^e  may  expect  to  find  courts 
construing  "without"  as  meaning  "without  ever  having  had."  "^\ 
§  544.     Suppose,  however,  there  is  no  independent  gift  to  the 
issue  of  the  first  taker— (1)  Results  of  the  English  cases  and 
effect  of  the  Wills  Act:     Where  there  is  no  independent  gift  to 
the  issue  of  the  first  taker  the  English  cases  found  no  ground 
for  construing  "without"  to  mean  "without  ever  having  had." 
The  choice  lay  between  a  definite  and  an  indefinite  failure  of  is- 
sue.   The  determination  of  which  of  these  is  to  be  taken  as  the 
primary  meaning  is  important  because  of  the  different  results 
which    follow   according   as   one    construction   or   the   other   is 
adopted.    If  the  gift  be  upon  a  definite  failure  of  issue  it  is  valid. 
If  it  be  limited  after  a  life  estate  in  land  it  would  be  destrueti- 
ble.'2     If  it  be  limited  after  an  absolute  interest  in  realty  or 
personalty  it  is  valid,  if  created  by  will,  as  a  shifting  executory 
devise.^3     if  limited  in  a  deed  it  should  be  equally  valid  as  a 
shifting  use  raised  by  bargain  and  sale.-"'"'     If,  however,  the  gift 
be  upon  an  indefinite  failure  of  issue  several  results  obtain.     If 
personal  property  is  involved,  it  is  void  for  remoteness.^^     If 
the  gift  be  of  real  estate,  then,  whether  the  first  taker  has  by 
express  words  a  life  estate  or  a  fee  simple,  he  will  take  a  fee 
tail.^" 

The  English  cases  very  early  settled  it  that  an  indefinite  fail- 
ure of  issue  was  primarily  meant."' ^     This  was  an  undesirable 

49  Friedman  v.  Steiiier,  107  111.  this  result  by  the  Illinois  cases, 
125;  Koeffler  v.  Koeffler,  185  111.  see  ante,  §445,  and  especially  Pal- 
261 ;  Johnson  v.  Buck,  220  111.  226.  mer  v.  Cook,  159  111.  300. 

50  Glover  v.  Condell,  ^r^?,  111.  ."66.  sr.  Glover  v.  Condell,  16.3  111.  566, 

51  J?i<e,  §  540.  ryR't,  semhJe. 

52  Ante,  §§310  et  seq.  sc  Theobald  on  Wills,  2nd  ed.  324, 

53  Ante,  §§467  et  seq.  563. 

54  For     the     doubt    thrown    upon  st  Arnold  v.   Alden,   173   111.   229, 

632 


Ch.    XXI  I     OUTS    OVER    UPON    DKATll    WITHOUT    ISSUE  [§545 

result  in  any  case.  If  personalty  were  involved  the  gift  over 
was  too  remote  and  so  wholly  void."'**  If  realty  were  in  ques- 
tion then  the  first  taker  took  an  estate  tail  ^^  and  the  remainder 
was  destructible.  Thus,  it  came  about  that  various  slight  cir- 
cumstances were  taken  advantage  of  in  order  to  construe  a 
definite  failure  of  issue.""  The  English  cases,  however,  have 
tended  to  make  a  difference  between  gifts  of  realty  and  per- 
sonalty—more freedom  being  permitted  in  construing  a  definite 
failure  of  issue  where  personalty  is  involved.  Thus,  it  was  set- 
tled in  the  English  courts  that  a  gift  over  if  the  first  taker  died 
"without  leaving  issue,"  meant  an  indefinite  failure  of  issue 
if  realty  was  involved,  but  a  definite  failure  of  issue  if  per- 
sonalty were  in  question."^  80,  if  the  gift  were  in  case  either 
one  of  two  devisees  die  without  issue,  then  to  the  survivor,  the 
English  authorities  held  that  if  personalty  were  involved  a  defi- 
nite failure  of  issue  was  meant."-  If  realty  were  in  question 
an  indefinite  failure  of  issue  was  indicated."^^  The  Wills  Acf'* 
put  an  end  to  the  rule  that  "without  issue"  meant  primarily 
an  indefinite  failure  of  issue  by  providing  that  the  words  "die 
without  issue"  should  be  construed  to  mean  a  want  or  failure 
of  issue  in  the  lifetime  or  at  the  death  of  the  person  referred 
to,  and  not  an  indefinite  failure  of  issue,  "unless  a  contrary  in- 
tention shall  appear  by  the  will  by  i-eason  of  such  person  having 
a  prior  estate  tail." 

§  545,  (2)  The  position  taken  by  the  Illinois  Supreme  Court 
— in  general:  Our  court  has  recognized  and  applied,  even  to 
limitations  of  real  estate,  the  English  eases  which  hold,  as  to 
personalty,  that  the  special  context  is  sufficient  to  warrant  con- 
struing a  definite  failure  of  issue.  Thus,  the  court  has  held  a 
gift  over  of  real  estate,  if  the  first  taker  died  "without  leaving 

238,     semble;     Strain     v.     Sweeny,  00  Smith  v.  Kimbell,  15.3  111.  368, 

163    111.    603,    606,    semble:    Smith  374,  semble;  Strain  v.  Sweeny,  163 

V.   Kimbell,   153   111.   368,   374,  sein-  111.  603,  607,  semble. 

ble;    Voris    v.    Sloan,    68    111.    588,  «i  Forth   v.  Chapman,   1   P.   Wnis. 

593,  semble.  663    (1720). 

58  Glover  v.  Condell,  163  111.  566,  62  Hughes    v.    Saver,    1    P.    Wma. 

585,  semble.  534    (1719). 

50  Smith   I'.  Kimbell,   153  111.  36S,  «:'  Chadock    c.    Cowley,    Cro.    Jae. 

376,    semble;     Summers    v.     Smith,  695   (1624). 

127  111.  645,  650,  seynble.  «•«  I  Vict.  Ch.  26,  sec.  29. 

633 


§545] 


FUTURE    INTERESTS 


[ClI.    XXI 


issue"'  to  mean  a  definite  failure  of  issue. ^""^  So,  if  the  gift  over 
is  of  real  estate  in  case  either  one  of  two  devisees  die  without 
issue  then  to  the  "survivor,"  a  definite  failure  of  issue  was  held 
to  have  been  meant.^*' 

There  are  many  indications  that  the  Court  is  prepared  to 
adopt  the  view  of  the  Wills  Act,  that  a  definite  failure  of  issue 
is  prima  facie  meant  rather  than  an  indefinite  failure.^'^  Apart 
from  interests  subject  to  an  estate  tail  ^*  our  Supreme  Court 
has  never  yet  held  that  a  future  interest  was  limited  to  take 
effect  upon  an  indefinite  failure  of  issue.  The  court  has,  indeed, 
in  two  *^^  instances  at  least,  gone  very  far  in  finding  from  the 
general  context  of  the  will  that  a  definite  failure  of  issue  was 
meant  and  expressed."*^  In  two  cases," ^  where,  however,  the 
position   was   unnecessary   to   the   decision,    it   was   announced 


05  Smith  V.  Kimbell,  153  111.  368; 
Hinrichsen  v.  Hinrichsen,  172  111. 
462;  Metzen  v.  Sehopp,  202  lU.  275; 
Eobeson  v.  Cochran,  255  111.  355; 
Morris  v.  Phillips,  287  111.  633. 

««  Summers  v.  Smith,  127  111.  645 ; 
Arnold  v.  Alden,  173  111.  229;  Hin- 
richsen V.  Hinrichsen,  172  111.  462; 
Waldo  V.  Cummings,  45  111.  421. 
The  same  rule  might  have  been  ap- 
plied to  sustain  the  result  reached 
in  Johnson  v.  Johnson,  98  111.  564. 
In  Silva  v.  Hopkinson,  158  111. 
386,  it  seems  to  have  been  assumed 
that  a  definite  failure  of  issue  was 
meant,  though  on  that  supposition 
the  case  must  be  regarded  as  over- 
ruled. Ante,  §  470.  Tor  some 
valuable  remarks  upon  this  case 
in  this  connection,  see  Mr.  Lessing 
Rosenthal's  article  in  28  Chicago 
Legal  News,  p.  257. 

«^  See  post,  §  614,  for  an  instance 
where  on  another  point  the  court 
adopted  as  the  primary  rule  of  con- 
struction the  meaning  required  by 
the  Wills  Act  instead  of  that  ap- 
proved by  the  English  cases. 

^^Ante,  §§410-411;   post,   §548. 

69  Strain  v.  Sweeny,  163  111.  603; 


Gannon  v.  Peterson,  193  111.  372. 

70  In  Strain  v.  Sweeny,  163  111. 
603,  the  devise  was  to  A  in  fee 
"but  in  case  he  should  die  without 
issue  of  his  body  then  the  same 
shall  go  to  B. "  The  court  con- 
strued a  definite  failure  of  issue 
because  ' '  issue  of  his  body ' '  meant 
"children,"  and  because  "then" 
was  an  adverb  of  time  and  referred 
to  the  death  of  A.  See  also  Lunt  v. 
Lunt,   108   111.   307. 

Observe,  also,  four  cases  where 
realty  was  involved  and  where,  af- 
ter a  life  estate  to  A,  there  were 
limitations  to  the  issue  of  A,  but, 
if  A  "died  without  issue"  then  to 
B  absolutely:  Healy  v.  Eastlake, 
152  111.  424;  Kellett  v.  Shepard, 
139  111.  433;  Seymour  v.  Bowles, 
172  111.  521;  Johnson  v.  Askey,  190 
111.  58.  In  each  of  these  cases,  the 
gift  over  if  A  died  without  issue, 
was  held  to  be  valid  and  the  court 
seems  to  assume  in  three  of  them, 
at  least,  that  a  definite  failure  of 
issue  was  meant. 

71  Summers  v.  Smith,  127  111. 
645,  650-651 ;  Smith  v.  Kimbell,  153 
111.  368,  376. 


634 


Ch.    XXI]     GIFTS   OVER    UPON    DEATH    WITHOUT    ISSUE  [§  546 

quite  emphatically  that  a  gift  on  failuro  of  issue  always  meant 
primarily  a  definito  failure  of  issue.  This  dictum  was  sup- 
ported by  the  following  reasoning:  It  was  the  existence  under 
the  English  system  of  estates  tail  and  limitations  after  an  estate 
tail,  that  caused  a  gift  on  failure  of  issue  to  mean  an  indefinite 
failure  of  issue.  Estates  tail,  however,  are  no  longer,  under 
our  statute  of  1827,"-  permitted  to  exist  as  such,  and  they  have 
dropped  out  of  our  system  of  conveyancing,  except  as  a  mat- 
ter of  accident.  The  change,  therefore,  in  our  practice  of  con- 
veyancing, dating  from  the  beginning  of  the  history  of  this 
jurisdiction,  has  altered  the  primary  meaning  of  the  phrase 
"die  without  issue." 

§546.  Stafford  v.  Read'-  and  Kendall  v.  Taylor:  "^  In 
these  two  recent  cases  the  court  appears  to  have  asserted  that 
"die  without  issue"  might  be  treated  as  meaning  primarily 
' '  die  without  ever  having  had  issue, ' '  even  where  the  first  taker 
took  a  fee  and  where  there  was  no  independent  gift  to  the  issue 
or  children  of  the  first  taker."'-  It  is  believed  the  court  over- 
looked the  distinctions  which  have  been  taken,  ante,  §§539-541. 
It  relied  upon  the  eases  of  Voris  v.  Sloan,'^  Field  v.  Peeples'^'' 
and  King  v.  King,'^  which  are  sustainable  under  the  distinc- 
tions there  made  and  could  hardly  be  used  as  the  basis  for  a 
general  rule  that  "die  without  issue"  primarily  means  "die 
without  ever  having  had  issue."  A  number  of  cases '^^  show 
no  disposition  to  repeat  the  holding  of  Stafford  v.  Read  and 
Kendall  v.  Taylor.  The  presence  of  Stafford  v.  Read  and  Ken- 
dall V.  Taylor  in  our  supreme  court  reports  is  likely  to  be  a  dis- 
turbing influence,  for  it  raises  the  hope  that  any  gift  over  on 
the  death  of  the  first  taker  "without  issue,"  or  even  "without 
children"  for  that  matter,  may  be  construed  "without  ever  hav- 
ing had  children." 

-2  Ante,  §402.  to    be    construed    as    mcaiung    "die 

T3  244  111.  138.  without  ever  having  had  issue." 

T4  245  111.  617.  ""■■  68  111.  588,  ante,  §  540. 

T5  See  also  Blaekstone  r.  Althouse,  "  180  111.  :^76,  ante,  §  540. 

278  111.  481;   Muhlke  v.  Tiedemann,  -^  215  111.  100,  ante,  §540. 

280   111.   534.     In   Winchell   v.  Win-  •'  Eobeson    v.    Cochran,    255    111. 

ehell,  259  111.  471,  the  court  held  that  :*.5r);  Wilson  r.  Wilson,  261  111.  174; 

"die  without   issue"   introducing   a  Blakeley  v.  Mansfield,  274  111.  133; 

remainder   after   an   estate   tail   was  O  'Hare  v.  Johnston,  273  111.  458. 

635 


§  5-47]  FUTURE   INTERESTS  [Ch.    XXI 

It  should  be  observed  that  the  meaning  to  be  placed  upon  the 
word  "die"  lias  an  important  bearing  upon  whether  a  definite 
or  indefinite  failure  of  issue  is  meant.  If  the  gift  is  to  A  for 
life  and  then  to  the  heirs  of  the  body  of  A,  with  a  gift  over  if 
any  of  the  heirs  of  the  body  die  leaving  no  issue,  and  "die" 
means  die  prior  to  the  death  of  the  life  tenant,  "without  issue" 
must  mean  a  definite  failure  of  issue.^^ 

§547.  O'Hare  v.  Johnston:  ^i  Here  there  was  a  trust  of 
personalty  to  be  divided  thirty  years  after  the  testator's  death. 
In  the  meantime  the  income  was  to  be  paid  to  the  testator's 
children  ecjually.  It  was  provided  that  upon  the  death  of 
either  child  without  issue  the  share  of  each  should  go  over  to 
the  survivor.  It  was  argued  that  "die  without  issue"  here  meant 
at  least,  "be  dead  without  issue,"  at  any  time  within  the  thirty 
year  period.  The  court,  however,  held  that  it  meant  "die  with- 
out issue  surviving"  any  time  within  the  thirty  year  period. 

§  548.  Whether  an  indefinite  failure  of  issue  is  meant  where 
"die  without  issue"  introduces  a  remainder  after  an  estate 
tail:  Such  a  remainder  was  regularly  introduced  bj^  the 
phrase  if  the  tenant  in  tail  "die  without  issue."  When,  there- 
fore, the  phrase  "die  without  issue"  is  used  to  introduce  such  a 
remainder  it  would  seem  that  it  must,  even  in  this  State,  be 
construed  to  mean  an  indefinite  failure  of  issue.  As  a  matter 
of  the  expressed  intent  no  other  view  would  seem  possible.  Our 
Supreme  Court  has  taken  that  position  in  Kohner  v.  Miles.^- 
Nevertheless,  the  court  has  also  held  that  "die  without  leaving 
issue,"  which  introduced  an  interest  after  an  estate  tail,  meant 
a  definite  failure  of  issuo,*^'^  and  that  "die  without  issue,"  which 
introduced  such  a  remainder  meant  "without  ever  having  had" 
issue.^^  The  status  of  a  remainder  after  an  estate  tail  limited 
to  take  effect  on  an  indefinite  failure  of  issue  has  already  been 
indicated.*'^ 

§  549.  Results  which  would  follow  if  our  Supreme  Court 
held  a  future  interest,  other  than  a  remainder  after  an  ex- 
pressly  created   estate  tail,   to  have  been  limited  upon  an 

80  Morris  v.  Phillips,  287  III.  633,  «-  Metzen  v.  Schopp,  202  111.  275. 
640.  s*  Winchell    v.    Winchell,    259    III. 

81  273  111.  458.  471. 

82  270  111.  20,  85  Ante,  §§  410-411. 

636 


Ch.    XXI]     UIKTS    OVER    UPON    Dl-ATII    WlTin^UT    ISSUE  [§550 

indefinite  failure  of  issue:  If  the  interests  were  in  personalty 
they  would  be  void  for  i-einoteness.  If  tliey  were  in  land, 
whether  legal  or  e(iuitabh%  and  created  I)y  will,  the  Hrst  ques- 
tion would  be  whether  the  gift  over  on  an  indefinite  failure 
of  issue  would  turn  the  first  taker's  interest  (whether  ex- 
pressly limited  for  life  or  in  fee)  into  an  estate  tail  upon 
which  the  Statute  on  Pintails  would  operate.  If  it  did  then 
the  gift  over  would  be  a  remainder  after  an  estate  tail  and 
the  consequences  already  indicated  would  follow.**^  If  the  first 
taker's  interest  were  not  turned  into  an  estate  tail  then  the  gift, 
if  an  equitable  interest,  would  be  too  remote.  If  a  legal  inter- 
est in  land  were  in  question  and  the  gift  over  were  a  contingent 
remainder  after  a  life  estate  it  would  be  destructible  and  not 
void  for  remoteness;  but  it  might,  if  it  became  a  shifting  future 
interest  after  a  vested  remainder  in  the  issue  of  the  life  tenant, 
be  destroyed  ^'  or  be  void  for  remoteness. 

§550.  Ewing  v.  Barnes:  ^^  An  attempt  has  been  made  to 
explain  Ewiufj  v.  liarnes  upon  the  gi-ound  that  the  gift  over, 
which  was  held  void,  was  upon  an  indefinite  failure  of  issue  in 
the  first  taker  and  so  too  remote.''^'  This  may  be  done  if  the 
gift  over  be  treated  as  a  similar  gift  over  of  personal  property 
would  be.  denying  the  application  of  the  rule  of  construction 
of  the  Englisli  cases  which  would  turn  the  first  taker's  interest 
into  an  estate  tail.»^'  On  the  other  hand,  if  the  first  taker's 
interest  be  turned  into  an  estate  tail  then,  by  the  statute,^  ^  the 
limitations  would  read:  A  term  for  years  in  trustees  till  A 
reached  twenty-five,  and  subject  thereto  to  a  legal  estate  to  A  for 
life,  contingent  remainder  in  fee  to  children  still  unborn,  and  an 
ultimate  interest  upon  an  indefinite  failure  of  issue  to  B.  If, 
then,  the  destructibility  of  contingent  remainders  is  recognized,^^ 
B's  iiiterest,  though  liable  to  be  defeated  or  fail,  is  not  void  from 
the  beginning  for  remoteness.-'^ 

86  7(f.  III.    345,    ante,    §482,    the    remarks 

87  Ante,  §  411.  of  the  text  would  apply. 

88  156  111.   61,  autc,   §469.  9o  This    seems    to   have    been    the 

89  Mr.  Leasing  Rosenthal's  article  assumption   of  the   court, 
in   28  Chicago  Legal  News,  p.  257.  '^^  Ante,  §402. 

If  the  same  attempt  had  been  made  ^'^  Anic,  §§  ;>10  et  seq. 

to    explain   Burton    r.   Gagnon,    ISO  93  Ante,  §§410,411. 

637 


§551] 


FUTURE    INTERESTS 


[Ch.  XXI 


TITLE   IV. 

MEANING  OF  "ISSUE"  IN   GIFTS  OVER  IF   THE   FIRST   TAKER 
"DIES    WITHOUT   ISSUE." 

§551.  When  construed  as  meaning-  "children":  Tf  there 
be  no  independent  gift  to  the  children  or  is.sne  of  tlie  tirst  taker 
and  no  .speeial  context,  it  wonld  seem  that  the  word  "issne" 
should  have  its  primary  meaning;  of  descendants  and  the  ques- 
tion will  arise  whether  a  definite  or  indefinite  failure  is  meant.'^^ 
But  if  there  is  an  independent  gift  to  the  "children"  of  the 
first  taker  then  in  a  gift  over  if  the  first  taker  "die  without 
issue,"  "issue"  has  been  held  to  mean  " children. " '-^^  The 
effect  of  this  is  to  prevent  "die  without  issue"  from  meaning  an 
indefinite  failure  of  issue.  It  would  perhaps  be  a  more  conven- 
tional interpretation  to  hold  that  "without  issue"  meant  "with- 
out such  issue. ' '  '-•*' 

TITLE  V. 

MEANING  OF  "HEIRS"  IN  A  GIFT  OVER  IF  THE  FIRST  TAKER 
"DIES  WITHOUT  HEIRS.  "  "^ 

^  552.  When  construed  as  meaning  "heirs  of  the  body"  or 
"children"   of  the  first  taker:     Where  the  gift  over  if  the 


^*Ante,  §§542  et  seq. 

In  a  number  of  cases  we  find  a 
gift  over  expressed  to  be  upon  the 
first  taker's  dying  "without  heirs 
of  his  bofly"  (Summers  v.  Smith, 
127  111.  645)  or  "leaving  no  issue" 
(Smith  V.  Kimbell,  153  lU.  368),  or 
"without  issue  of  his  body" 
(Strain  i'.  Sweeny,  163  111.  603).  In 
all  of  these  cases  it  was  held  that 
the  gift  over  was  on  a  definite  fail- 
ure of  issue,  ante,  §  545.  Appar- 
ently some  ground  was  found  for 
this  construction  from  the  fact  that 
"heirs"  or  "issue"  might  mean 
' '  children. "  It  is  clear,  however, 
from  Strain  v.  Sweeny,  that  it  was 
not  held  that  ' ' heirs "  or  "issue " 
in  these  cases  were  the  absolute 
equivalent  for  "children,"  for  they 
included  any  issue  of  the  first  taker 
that  might  be  living  at  the  time  of 
his  death. 


93Blakeley  v.  Mansfield,  274  111. 
133;  O'Hare  v.  Johnston,  273  111. 
458;  Wilson  v.  Wilson,  261  111.  174; 
Stisser  v.  Stisser,   235  111.   207. 

96  Where  the  limitations  are  to  A 
for  life  and  then  to  his  issue,  or 
his  issue  surviving  him,  with  a  gift 
over  if  A  dies  without  issue,  "die 
without  issue"  may  be  construed  to 
mean  ' '  die  without  such  issue, ' ' 
Avhich  will  cause  it  to  mean  "die 
without  ever  having  had  issue, ' '  or 
' '  without  issue  surviving, ' '  as  the 
case  may  be.  Theobald  on  Wills, 
7th  ed.  711-712.  See  also  Kellett  v. 
Shepard,  139  III.  433;  Healy  v. 
Eastlake,  152  111.  424;  Seymour  v. 
Bowles,  172  111.  521;  Johnson 'i;. 
Askey,  "190  111.  58. 

97  For  the  cases  generally  where 
"heirs"  is  construed  to  mean  "chil- 
dren," see  post,  §574,  note. 


638 


Cll.    XXI  J     (JIFT.S    OVER    IM'ON    DEATH    WITHOUT    ISSUE 


§552 


first  taker  dies  "leaviiijr  no  heirs"  is  to  tiie  persons,  or  some  of 
them,  who  would  he  the  first  talker's  collateral  heirs  if  he  died 
without  heirs  of  his  body,  a  prima  facie  inference  arises  that 
"without  heirs"  means  "without  heirs  of  the  hody.""^  Our 
Supreme  Court  has  not,  however,  been  content  merely  to  con- 
strue the  word  "heirs"  in  such  a  case  as  "heirs  of  the  body," 
but  has  insisted  that  "heirs"  meant  "children,"  so  that  an 
adopted  child  who  was  within  the  meanin<i:  of  heir  "of  the  body" 
but  not  within  the  meaning  of  "children"  was  not  included.'"' 
This  is  likely  to  make  trouble  where  the  first  taker  dies  leaving 
no  child  or  children  but  a  grandchild  or  more  remote  issue. 
Then  it  will  probably  be  held  that  when  "heirs"  is  construed 
to  mean  "children"  in  the  case  now  under  consideration  it  also 
includes  grandchildren. 


ssBradsby  v.  Wallace,  202  111. 
239.  In  Ahlfield  v.  Curtis,  229  111. 
1.39,  the  gift  over  was  if  the  first 
taker  died  ' '  leaving  no  heirs  of  her 
own, ' '  and  here  ' '  heirs ' '  meant 
' '  heirs  of  the  body  "  or  "  children. ' ' 
See  also  Kalies  v.  fiwert,  248  111. 
612;  Wilson  v.  Wilson,  261  111.  174; 
Theobald  on  Wills,  6tii  cd.  395; 
Lee  V.  Lee,  46  Ky.  605;  Bryan  v. 
Spires,  3  Brewster  (Pa.)   580. 

99  In  Wallace  v.  Noland,  246  111. 
535,  it  was  held  that  it  had  been 
decided  in  Bradsby  v.  Wallace  that 


"heirs"  meant  "children."  See 
also  the  language  of  the  court  in 
Ahlfield  V.  Curtis,  229  111.  139,  142, 
to  the  effect  that  "heirs"  meant 
' '  children. ' ' 

NOTE — (1)  On  meaning  of  "un- 
married" in  gifts  over  upon  the 
first  taker  dying  unmarried:  Frail 
V.  Carstairs,  187  111.  310;  Theobald 
on  Wills,  2nd  ed.  527-528. 

(2)  When  a  gift  over  unll  be  im- 
plied to  he  on  condition  that  A  dies 
"  withant  such  theirs :"  Young  r. 
Ilarkleroad,   166   111.   318. 


639 


CHAPTER  XXII. 
LIMITATIONS  TO  CLASSES. 

TITLE    I. 

A  GIFT   TO   A   CLASS  DISTINGUISHED  FROM   A  GIFT   TO 
INDIVIDUALS. 

§  553.  Importance  of  this  question:  If  the  gift  is  to  a 
class  and  one  dies  before  the  testator  there  is  no  lapse,  but  the 
members  of  the  class  who  are  in  esse  at  the  testator's  death  take 
the  entire  fund.^  If  the  gift  had  been  to  individuals  there 
would  have  been  the  lapse  of  a  share.  In  applying  Section  25  of 
the  Illinois  Inheritance  Tax  Act  it  may  make  a  difference  in 
the  amount  of  the  tax  whether  the  gift  is  to  a  class  or  to  indi- 
viduals.2  So  where  the  rule  is  that  a  gift  to  a  class  payable 
at  a  future  time  is  contingent  on  each  member  of  the  class 
surviving  the  period  of  distribution,  when  a  gift  to  individ- 
uals in  the  same  terms  would  not  be  so  contingent,^  the  question 
will  become  important  whether  the  gift  is  to  a  class  or  to  in- 
dividuals. 

§  554.  Cases  where  the  class  may  increase  or  diminish  even 
after  the  testator's  death:  If  a  devise  is  made  to  persons  who 
are  described  collectively  as  "children,"  "heirs,"  or  "issue," 
and  at  the  time  the  will  is  made  the  number  may  diminish  or 
increase  up  to  the  time  of  and  after  the  testator's  death,  we 
have  the  most  obvious  case  of  a  gift  to  a  class.  Thus,  where 
there  is  a  devise  to  A  for  life,  then  to  A's  children,  A's  children 

1  McCartney  r.  Osburn,  118  111.  40r!,  leaving    children,    and    no    provision 

418;  Lancaster  V.  Lancaster,  187111.  is   made   for   that   contingency,  the 

540,   546;   Rudolph   v.  Rudloph,  207  children  of  the  child   or  grandchild 

111.  266,  271.   Observe,  however,  that  so   dying   will   take   the   share  their 

under  sec.  11  of  our  Act  on  Descent  parent    would    have    taken    had    he 

(R.    S.    1874,    ch.    39,    sec    11),    if  outlived    the    testator:     Rudolph    v. 

the    class    consists    of    children    or  Rudolph,  supra. 

grandchildren    of    the    testator    and  2  People  v.  Byrd,  25:5  111.  223. 

one  dies  in  the  life  of  the  testator  '  Aiite,   §524;    post,   J  563. 

640 


ClI.    XXII]  LIMITATIONS   TO    CLASSES  [§556 

ma}'  increase  or  dimmish  during  the  life  of  the  testator  and 
after  the  death  of  the  testator  and  before  distribution  at  A's 
death.  So  if  tlie  devise  is  to  "my  nephews  and  nieces"  (their 
parents  being  then  alive),  the  number  may  increase  or  diminish 
before  the  testator's  death  and  afterwards.  Even  where  the 
gift  is  to  individuals,  naming  them  and  also  describing  them 
collectively  as  "A,  B  and  C,  children  of  my  sister"  (the  sister 
being  then  alive),  or  "A,  B  and  C,  my  nephews  and  nieces," 
the  designation  of  the  individuals  has  been  held  to  be  over- 
come by  the  collective  description  and  the  gift  has  been  held 
to  be  to  a  class,  so  that  on  the  death  of  one  before  the  testator 
there  was  no  lapse,  but  those  in  esse  at  the  testator's  death  took 
the  whole.^ 

§  555.  Cases  where  the  class  may  increase  or  diminish  up  to 
the  testator's  death  but  cannot  increase  afterwards,  or  may 
neither  increase  nor  diminish  afterwards :  It  is  not  necessary 
in  order  to  have  a  gift  to  a  class  that  the  personnel  of  the  class 
should  be  able  to  increase  after  the  testator's  death.  Thus  if 
the  testator  devises  to  his  widow  for  life  and  then  to  his  chil- 
dren, the  gift  to  the  children  is  to  a  class  though  the  number  of 
children,  while  it  may  diminish,  cannot  increase  after  the  tes- 
tator's death.^  Even  when  the  gift  after  the  widow's  death  was 
to  "my  children  A,  B  and  C,"  our  Supreme  Court  held  that 
the  collective  designation  prevailed  over  the  naming  of  the  in- 
dividuals, so  that  the  gift  was  to  a  class.«  If  the  devise  were 
to  the  testator's  children  at  his  death,  so  that  the  class  can- 
not increase  or  diminish  after  the  testator's  death  and  before 
distribution,  yet  so  long  as  the  designation  is  collective  the 
gift  is  to  a  class  and  not  to  individuals. 

§556.  Suppose  the  gift  is  to  the  "children"  of  a  person 
deceased  at  the  time  the  will  is  executed:  Here  the  personnel 
of  the  class  cannot  increase.  It  may,  however,  diminish  dur- 
ing the  life  of  the  testator  and  the  designation  of  those  who  are 
to  take  is  exclusively  collective.  It  is  held  that  the  gift  is  to  a 
class."     This  would  seem  to  indicate  that  the  presence  of  a  col- 

4Chase  V.  Pcckham,  17  R.  I.  38:1;  v.  Adams,  135  111.  80,  the  court 
Roosevelt  v.  Porter,  36  Misc.  Rep.  speaks  of  a  gift  to  the  testator's 
441;  73  N.  Y.  Supp.  800.  children  (naming  six)  or  their  heirs, 

5  People  r.  Byrd,  253  111.  223.  as  if  the  gift  were  to  a  class. 

e  People  v.  Byrd,  supra.     In  Ebey  '  Viner    v.    Francis,    2    Cox    190 

Kales  Fut.  Int.— 41  Q^l 


§  55BJ  FUTURE    INTERESTS  [CH.    XXII 

lective  designation  of  \\\v  devisees  is  the  more  important  ele- 
ment in  determining  whether  or  not  the  gift  is  to  a  class.  Cer- 
tainly the  fact  that  the  personnel  of  the  class  cannot  increase 
does  not  prevent  the  gift  being  to  a  class. 

A  more  ditificult  question  arises  where  the  personnel  of  the 
class  cannot  increase  after  the  will  is  executed  and  where  the 
objects  of  the  gift  are  described  both  collectively  and  indi- 
vidually, as  where  the  devise  is  to  "A,  B  and  C,  the  chil- 
dren of  my  deceased  sister."  One  might  guess  that  the  indi- 
vidual designation  would  override  the  use  of  the  collective  word 
''children''  and  that  the  gift  would  be  to  those  named,  and  the 
collective  word  ''children"  would  be  merely  descriptive  or  for 
complete  identification.  Yet  when  the  question  arises  as  to 
w^hether  there  is  a  lapsed  legacy  or  not  courts  have  repeatedly 
found  the  gift  to  be  to  a  class  even  in  such  a  case  as  that  put.^ 

In  the  face  of  these  results  the  recent  case  of  Blackstone  v. 
Althouse  ^  requires  special  notice.  There  a  testatrix  whose  par- 
ents were  deceased  devised  to  her  "brothers  and  sisters  as  fol- 
lows [naming  them]."  In  another  clause  she  devised  a  fee  to 
A  with  a  gift  over  if  he  died  without  issue  (which  happened) 
to  "my  brothers  and  sisters  and  John  Smith  Blackstone  and 
Ellen  Hartman,"  As  John  and  Ellen  were  not  within  the  class 
of  brothers  and  sisters  there  is  authority  that  as  to  them  the 
gift  would  not  be  to  a  class  and  that  on  the  death  of  one  of  them 
before  the  testatrix  there  would  be  a  lapse.^*^  The  principal 
question  was  whether  the  executory  devise  to  the  brothers  and 
sisters  was  contingent  upon  their  surviving  the  period  of  dis- 

(1789);   Dimond   v.  Bostoek,  L.   R.  was  to  a  class  so  that  J.  E.  L.  took 

10   Ch.   App.  .S58.     In  Lancaster  v.  the  whole. 

Lancaster,    187   111.    540,   the    testa-  « Springer    v.    Congleton,    30    Ga. 

tor  deviserl  -to  the  legal  and  direct  ^^6;     Warner's    Appeal,    39    Conn. 

,  ,     ^      i.,     t    •        £  ^u  ■     u    1  253;  Swallow  v.  Swallow,  166  Mass. 

descendants — the  heirs  of  their  bod-  '    „,     „  -n-xi  ,i     ■, ,     ah 

241  ;    Schaffer    v.    Kittell,    14   Allen 

ies  begotten  and  their  heirs-of  my  ^^^^^^  -^    5^8;    Hoppock   v.    Tucker, 

eldest    brother    W.    P.    L.    and    his  59  j^^  y.  202;   Page  v.  Gilbert,  32 

wife  M.  L.    (now  both  deceased)."  j^^^    ^n.  Y.)  301;  Bolles  v.  Smith, 

J.   E.   L.   and   J.   L.    G.,   both   heirs  09  Conn.  217. 
of  the  bodies  of  the  given  ancestors,  9  278  111.  481. 

were    alive    at    the    making    of    the  10 /n   re   Jackson,    L.    R.    25    Ch. 

will,   but   J.    L.   G.    died  before   the  Div.    162;    Theobald    on    Wills,   7th 

testator.     It  was  held  that  the  gift  ed.  788. 

642 


Ch.    XXII]  LIMITATIONS    TO    CLASSES  [§557 

tribution,  namely,  when  A  died  witliout  issue.  It  was  uigcd 
upon  the  court  ((juite  improperly,  it  is  submitted)  "  tliut  if 
the  gift  were  to  a  ehiss  it  must,  for  that  reason  alone,  l)e  re- 
garded as  contingent  on  the  members  of  the  class  surviving  the 
period  of  distribution.  To  meet  this  the  court  held  that  the 
gift  to  brothers  and  sisters  was.  not  to  a  class  l)ut  to  ascertained 
individuals.  The  court  seems  to  have  been  influenced  by  the 
fact  that  the  parents  of  the  brothers  and  sisters  were  long  since 
dead  so  that  there  could  be  no  more  brothers  and  sisters  and 
that  the  brothers  and  sisters  were  particularly  named  in  another 
clause.  If  such  considerations  are  to  prevail  over  the  collec- 
tive designation  it  shakes  the  holding  that  the  gift  is  to  a  class 
where  the  gift  is  '*to  the  children  of  my  deceased  sister,"  ^^ 
and  especially  where  it  is  to  the  children  (naming  them)  of  a 
person  then  deceased-i"^  tj^^  result  reached  by  the  court  should 
rest  upon  the  ground  that  the  executory  devise  was  not  expressly 
made  contingent  on  the  members  of  the  class  surviving  the  period 
of  distribution  and  the  fact  that  the  gift  was  to  a  class  did  not 
furnish  a  sufficient  inference  of  any  such  contingency  of  sur- 
vivorship. 

§  557.  Volunteers  of  America  v.  Peirce:  '^  Here  there  was 
a  gift  to  the  Illinois  Humane  Society  of  C'hicago,  the  Old  Peo- 
ple's Home  of  Chicago,  the  Home  of  the  Friendless  in  Chicago, 
Buchanan  Anti-Saloon  League  of  Bucluman.  Michigan,  the 
Young  Men's  Christian  Association  of  Buchanan,  ]\Iicliigan,  if 
it  is  in  existence,  and  if  not  to  the  Young  ^Men's  Christian  As- 
sociation of  the  City  of  Chicago.  Tt  is  difficult  to  see  how  this 
could  be  construed  to  be  a  gift  to  a  class  of  charities.  If  one 
made  a  gift  to  all  the  charities  in  a  given  town,  or  all  the  chan- 
ties for  educational  purposes  in  a  given  district,  the  gift  might 
be  regarded  as  a  gift  to  a  class  of  charities,  but  when  specific 
charities  are  named  having  no  obviously  common  characteristic 
except  that  they  are  charities,  and  where  no  common  character- 
istic is  attempted  to  be  designated  it  is  impossible  to  say  that 
the  gift  is  to  a  class  of  charities.  The  contention  that  the  gift 
was  to  a  class  of  charities  and,  therefore,  when  the  gift  to  one 
failed  the  remaining  charities  took  the  entire  fund,  was  prop- 
erly denied  by  the  court. 

i'i  Ante,  §o2.3;   post,  §  ilfir!.  ^^  Supra,  note  8. 

^"- Supra,  notP  7.  i-*  267  Til.  406. 

643 


§  558]  FUTURE    INTERESTS  [Ch.    XXII 

TITLE   II. 
VALIDITY  OF  GIFTS  TO  A  CLASS. 

§  558.  Where  no  interest  is  limited  preceding  the  gift  to 
the  class  and  subsequently  born  members  of  the  class  are  in- 
tended to  take :  If  no  members  of  the  class  are  in  esse  at  the 
time  of  the  gift  the  attempt  made  is  to  create  a  springing  future 
interest.  This  is  valid  by  devise  ^^  or  by  way  of  equitable  in- 
terest.i^  It  is  valid  by  way  of  use  ^~  and  even  by  bargain  and 
sale  where  the  consideration  is  paid  by  another.  ^^ 

If  one  member  of  the  class  is  in  esse  at  the  time  of  the  gift 
the  title  vests  in  possession  in  him,  and,  so  far  as  the  subse- 
quently born  members  of  the  class  are  concerned,  the  attempt 
is  to  create  a  shifting  future  interest.  This  is  valid  by  devise  i» 
or  by  way  of  equitable  interest. ^o  It  is  valid  also  by  way  of 
use,  and  a  bargain  and  sale  may  be  used  to  create  such  an  in- 
terest, ^i  In  this  state  it  has  been  erroneously  held  that  where 
the  conveyance  is  by  deed  the  after-born  children  cannot  take.22 

§  559.  Where  the  gift  to  the  class  is  a  remainder — (1)  which 
vests  in  interest  upon  the  birth  of  a  member  of  the  class,  and 
where  it  is  expressly  provided  that  after-born  members  of  the 
class  are  to  take :  Before  the  birth  of  any  member  of  the  class 
the  remainder  is  contingent  and  follows  the  rules  relating  to  such 
remainders.  By  the  birth  of  a  member  of  the  class  before  the 
termination  of  the  life  estate  the  remainder  vests  in  a  member 
of  the  class.23  Thereafter  the  question  is  whether  the  vested 
remainder  will  open  to  let  in  other  members  of  the  class  who 
are  intended  to  take.  That  is  the  same  question  as  whether 
shifting  interests  are  valid.  Where  the  interests  are  created 
by  will  the  after-born  children  may  take.  The  same  result 
should  be  reached  where  the  interests  are  created  by  way  of 
use.  If  the  interests  are  equitable  or  in  personal  property  it  is 
assumed  that  the  intent  expressed  may  be  carried  out. 

§  560.  (2)  Where  the  remainder  to  the  class  is  subject  to 
a  condition  precedent  in  form  which  may  not  happen  until 

i5^u<e,  §474.  2oj„<e,  §§472,  478. 

^f-Ante,  §§472,  478.  ^i  Ante,  §476. 

I-  Ante,  §475.  -Id. 

IS  Id.  2^  Ante,  §  477. 

^^Ante,  §474. 

644 


ClI.    XXI I J  LIMITATIONS   TO    CLASSES  [§  561 

after  the  termination  of  the  life  estate :  Suppose,  for  instance, 
the  remainder  is  limited  to  such  children  of  the  life  tenant  as 
reach  twenty-one.  If  none  have  reached  twenty-one  when  the 
interests  are  created  the  remainder  is  contingent  and  subject 
to  the  usual  rules  relating  to  contingent  remainders.  The  mo- 
ment, however,  oiie  child  reaches  twenty-one  before  the  termi- 
nation of  the  life  estate  the  remainder  vests.  It  will  open  and 
let  in  other  children  who  reach  twenty-one  before  the  life  estate 
terminates.^'* 

Suppose,  now,  that  some  children  are  in  esse  when  the  first 
child  reaches  twenty-one  and  the  life  estate  terminates  before 
they  reach  twenty-one,  can  they  share  upon  reaching  twenty- 
one?  The  answer  must  be  in  the  affirmative  if  the  interests 
are  equitable  or  in  personal  property  because  in  such  interests 
there  is  no  rule  of  destructibility.  If,  however,  the  remainder 
is  a  legal  interest  in  land  created  by  will  or  by  way  of  use  inter 
vivos  and  the  rule  of  destructibility  of  contingent  remainders 
is  in  force,  the  English  authorities  have  assumed  that  the  chil- 
dren who  reach  twentj^-one  after  the  termination  of  the  life 
estate  cannot  take  -^  except  in  the  one  case  where  the  remainder 
is  limited  to  such  children  as  "either  before  or  after"  the  death 
of  the  life  tenant  reach  twenty-one.-"  There  is  authority  in 
this  country,  which  is  believed  to  be  sound,  that  the  children 
who  reach  twenty-one  after  the  termination  of  the  life  estate 
will  take  even  when  the  remainder  is  limited  merely  to  the 
children  who  reach  twenty-one,  without  saying  ''either  before 
or  after"  the  life  tenant's  death.^^ 

TITLE  III. 
RULE  IN  WILD'S  CASE.28 

§  561.  Where  a  devise  is  made  to  "A  and  his  children"  and 
at  the  time  of  the  devise  and  of  the  testator's  death  A  has 
children:  In  Wild's  Case  it  is  said  that  A  and  his  children 
take  as  joint  tenants  for  life  by  the  common  law.2»  Today  in 
this  state  they  would,  of  course,  take  as  tenants  in  common  in 

2*  Ante,  §308.  286  Co.  17  (1599). 

25  Ante,  §  101.  29  Faloon  v.   Simshaiiser,   130   111. 

26  Ante,  ^102.  649;    Boehm    v.    Baldwin,    221    111. 
2~  Ante,  §103.  59,  63. 

645 


§  562]  FUTURE    INTERESTS  [Ch.    XXII 

fee.^^'  This  is  what  might  be  expected  upon  the  usual  con- 
struction of  the  language  used.  It  can  hardly  be  said  to  be  an 
application  of  any  special  rule.  It  is  not  the  result  of  what 
has  been  called  the  Rule  in  Wild's  Case. 

§  562.  Where  a  devise  is  made  to  "A  and  his  children" 
and  A  has  at  the  time  of  the  devise  no  children :  By  the  Rule 
in  Wild's  Case->i  A  takes  an  estate  tail.^^  Tj^i^  rule  has  been 
regarded  by  our  Supreme  Court  as  connected  with  the  fact  that, 
if  there  were  no  Rule  in  Wild's  Case,  A  at  common  law  would 
have  taken  merely  a  life  estate  and  A's  children,  if  he  had  any, 
would  be  disappointed.  Hence  the  rule  operated  to  enlarge  a 
life  estate  into  a  fee  tail  w^hich,  if  the  entail  Avere  not  barred, 
would  operate  to  pass  the  property  by  descent  to  the  heirs  of 
A's  body  upon  his  death.  If  the  entail  were  barred  A  woidd 
take  the  fee.  Under  Section  13  of  our  Conveyancing  Act  A 
would  take  not  a  life  estate  but  a  fee,  and  hence  his  children 
might  take  by  descent  from  him  or  he  might  alien  in  fee.  If 
the  Rule  in  Wild's  Case  operated  in  this  state  today  it  would 
cut  down  A's  fee  to  a  fee  tail  which  the  statute  would  cut  down 
still  further  to  a  life  estate,  and  this  would  give  a  result  quite 
out  of  harmony  with  Section  13  of  the  Conveyancing  Act,  which 
seeks  to  vest  the  fee  in  a  grantee  unless  a  less  estate  is  expressly, 
or  by  operation  of  law,  limited,  and  quite  out  of  harmony  with 
the  operation  of  the  Rule  in  Wild's  Case  which  sought  to  enlarge 
a  life  estate  into  a  fee  tail.  Our  Supreme  Court  has  therefore, 
very  properly  settled  it  that  the  Rule  in  Wild's  Case  is  not  in 
force  in  this  state.^^ 

TITLE   IV. 
DETERMINATION  OF  CLASSES. 

§  563.  Distinction  between  the  rules  for  the  determination 
of  classes  and  those  which  determine  whether  the  gift  to  the 
class  is  contingent  upon  the  members  of  the  class  surviving  the 
period  of  distribution:  In  determining  what  members  of  the 
class  are  entitled  to  share  two  questions  arise:  frst,  what  is  the 

^<i  Ante,   §§210-211.  32  Hawkins  on  Wills,  2ud  ed.  by 

31  6   Co.    17    (1599)  ;    Beaeroft  v.       Sanger,  243. 

Strawn,    67    111.    28,    X\;    Baker  v.           s.-i  Davis   v.  Ripley,   194   111.    399; 

Scott,  62  111.  86.  Boehm    v.    Baldwin,    221    111.    59; 

646 


Cll.    XXI J  J  LIMITATIONS    TO    CI.ASSKS  [§  .303 

maximum  mimln'r  of  IIk*  chtss  wliidi  may  be  admitlcd  to  share; 
and  second,  which  of  tliose  included  in  this  maximum  luimber 
will  be  permitted  to  share.  The  second  of  these  questions  is 
entirelj-  one  of  determining  whether  the  gift  to  the  class  is 
contingent  upon  the  members  surviving  a  particular  time,  us- 
ually the  period  of  distribution.  Here,  whether  the  gift  is 
vested  or  contingent,  or  vested  indefeasibly,  or  defeasible  upon 
death  before  the  period  of  distribution,  is  all  important.  The 
first  question  is  strictly  one  of  the  determination  of  the  class 
and  is  subject  to  certain  rules  known  as  rules  for  the  determi- 
nation of  classes.  These  rules  are  concerned  merely  with  the 
total  number  of  those  who  may  possibly  be  admitted  to  share — 
that  is  to  say,  with  the  length  of  time  during  which  the  class 
may  be  increased.  They  have  nothing  whatever  to  do  with 
whether  the  interest  is  vested  or  contingent.  Thus,  if  there  is 
a  gift  to  the  children  of  A  to  be  paid  at  twenty-one  the  gift 
is  vested.  If  it  be  to  the  children  of  A  who  reach  twenty-one 
it  is  contingent.  Yet  in  each  case  the  class  is  determined,  not 
with  reference  to  when  the  interest  vests,  but  to  the  time  when 
the  first  distribution  is  made.-'^  Whether  the  interest  is  vested 
or  not,  while  it  may  be  a  factor  in  determining  the  period  of 
distribution,  for  the  most  part  only  affects  the  amount  which 
the  members  of  the  class  will  take.  If  it  be  vested,^^  then  upon 
the  death  of  any  member  of  the  class  taking  a  vested  interest, 
such  interest  will  pass  to  his  representatives.  That  is,  the 
maximum  amount  which  each  member  of  the  class  can  possibly 
take  is  fixed;  but  this  may  be  cut  down  if  other  members  are 
added  to  the  class.  On  the  other  hand,  if  the  interest  is  con- 
tingent,"'"'  then,  if  one  dies  before  the  contingency  happens,  the 

Connor    v.    Gardner,    230    111.    258,  111.    574;    Planner    v.    Fellows,    206 

272;  Reed  v.  Welborn,  253  111.  338;  111.  136. 

"Way  V.  Geisa,  280  111.  152.  3.;  in  the  following  cases  the  gift 

^*  Post,  §§564   et  seq.  to   the   class   was   contingent   on   its 

35  In  the  following  cases  the  gift  members    surviving    the    period    of 

to   the  class  was  vested   at  the   tes-  distribution:     Ridgeway     v.    Under- 

tator's  death,  yet  the  class,  accord-  wood,    67    111.    419;     Blatchford    v. 

ing  to  the  general  rule,  was  allowed  Newberry,  99  111.  11;   Bates  v.  Gil- 

to  increase  until  the  period  of  dis-  lett,   132   111.   287;   Ebey  v.  Adams, 

tribution:     Cheney  v.  Teese,  108  111.  135    111.    80;    Pitzel    v.    Schneider, 

472,   473;    Howe   v.   Hodge,  152  111.  216  111.  87. 

252,  277;    Chapman   r.   Cheney,  191  In     Schuknecht    v.     Schultz,    212 

647 


§  563]  FUTURE    INTERESTS  [Ch.    XXII 

Other  members  of  the  class  surviving  the  contingency  take  all. 
In  tliis  case  the  maximum  amount  of  the  share  of  each  is  not 
determined  until  the  contingency  happens  and  all  the  interests 
vest. 

The  distinction  between  the  determination  of  what  maximum 
number  of  the  class  may  be  admitted  to  share,  and  whether  the 
members  of  the  class,  who  may  be  so  admitted,  must  survive 
the  period  of  distribution  in  order  to  take,  was  recognized  by 
our   Supreme    Court   in   McCartney   v.   Oshurn.^'^      The   court 
said:  "where  the  gift  or  devise  is  to  a  class,  none  will  be  per- 
mitted to  take  except  such  as  are  in  esse  at  the  time  of  distribu- 
tion."   This  was  intended  as  an  announcement  of  the  rule  which 
allowed  the  class  to  increase  only  until  the  period  of  distribution, 
whether  the  gift  were  vested  or  contingent.     If,  however,  the 
statement  of  the  court  had  stopped  at  this  point  it  would  have 
been  inaccurate  because  it  would  have  required  all  who  took  to 
survive  the  period  of  distribution.     The  court  evidently  per- 
ceived this  and  therefore  added  that  this  general  statement  was 
subject  to  the  qualification  "that  where  the  gift  or  devise  is 
to  a  class,  as  tenants  in  common,  with  no  provision  for  survivor- 
ship, and  one  or  more  of  the  class  die  after  the  gift  or  devise 
has  taken  effect  in  interest,  and  before  the  time  of  distribution, 
the  shares  or  portions  of  those  so  dying  will  go  to  their  devisees, 
or,  in  case  of  intestacy,  to  their  heirs  or  next  of  kin,  as  the 
case  may  be. ' '    Thus  the  court  clearly  recognized  the  difference 
between  the  rule  for  the  determination  of  the  maximum  number 
of  the  class  who  might  share  and  the  question  whether  the  mem- 
bers of  that  class  must  survive  the  period  of  distribution  in 
order  to  take. 

Recently,  however,  the  court  has  announced  without  qualifi- 
cation, as  a  rule  for  the  determination  of  the  class,  that  ^s  '  *  the 
rule  is  that  where  the  gift  is  not  in  terms  immediate  and  so 
confined  and  a  gift  to  a  class  is  postponed  pending  the  termi- 
nation of  a  life  estate,  those  members  of  the  class,  and  those 

111.    43,    the    future    interest    was  st  ng  111.  403,  418,  ante,  §  523. 

either     certain      or     non-contingent  38  Drury   v.    Drury,   271    111.    336, 

executory  or  else  contingent  execu-       341. 

tory,   yet    that    did    not    affect    the 

rules     for     the     determination     of 

classes. 

648 


Cn.    XXIIJ  LIMITATIONS   TO   CLASSES  [§564 

only,  take  who  are  in  existence  at  the  death  of  the  life  tenant."  ^^ 
Along  with  this  statement  the  court  has  shown  a  tendency  to 
hold  that  a  gift  to  a  class  merely  as  such,  made  the  gift  con- 
tingent on  the  members  of  the  class  surviving  the  period  of  dis- 
tribution.^" This,  it  is  submitted,  confuses  the  question  of  the 
determination  of  the  class  with  the  question  whether  the  gift 
was  contingent  on  the  members  of  the  class  surviving  the  period 
of  distribution.  A  rule  is  stated  for  the  determination  of  the 
class  which  would  make  every  gift  to  a  class  contingent  on  the 
members  of  the  class  surviving  the  period  of  distribution.  This, 
it  is  believed,  is  erroneous.  The  rule  for  the  determination  of 
the  class  is  that  those  born  up  to  the  period  of  distribution  are 
entitled  to  be  considered  as  members  of  the  class.  But  whether 
all  of  those  born  before  the  period  of  distribution  are  entitled  to 
share,  or  only  such  as  survive  the  period  of  distribution,  is 
settled  by  considering  Avhether  the  gift  is  to  members  of  a  class 
who  survive,  so  that  it  is  contingent,  or  whether  it  is  non-con- 
tingent and  vested,  so  that  upon  the  death  of  any  member  of 
the  class  before  the  period  of  distribution  his  interest  will  pass 
to  his  representative.  That  is  a  question  of  construction  which 
should  be  considered  entirely  apart  from  any  rule  for  the  de- 
termination of  the  possible  maximum  number  of  the  class.  It  is 
very  questionable  whether  the  fact  that  the  gift  is  to  a  class  is 
even  a  circumstance  in  favor  of  the  gift  being  held  to  be  con- 
tingent upon  the  members  of  the  class  surviving  the  period  of 
distribution.'*^ 

In  the  following  sections  the  rules  relating  strictly  to  the 
determination  of  classes  are  dealt  with.  No  attempt  at  this 
point  is  made  to  consider  whether  the  gift  to  the  class  is  con- 
tingent on  the  members  surviving  the  period  of  distribution  or 
not.  That  difficulty  of  construction  has  already  been  considered 
elsewhere.^- 

§  564.  Rule  when  the  period  of  distribution  is  the  death  of 
the  testator:  Suppose  there  is  a  gift  to  all  the  children  of  A, 
and  they  are  to  take  at  the  testator's  death.  It  is  the  settled 
rule  that  if  A  have  children  at  the  death  of  the  testator,  they 

39  Similar    expressions    are    to    be  *o  Ante,  §§353,  524. 

found  in  Brewick   v.  Anderson,  207  •«i  Id. 

111.  169,  and  Blaokstone  v.  Althousc,  *~  Id. 
278  111.  481,  487. 

649 


§  565]  FUTURE    INTERESTS  [CH.    XXII 

take  and  subsequently  born  children  are  not  let  in.^^  Of  course 
the  testator  may,  by  apt  words,  include  in  the  cla«s  designated, 
not  only  those  born  at  his  death,  but  all  who  may  at  any  time 
thereafter  be  born  to  A.  This  effect  was  given  to  the  language 
of  the  will  in  Handherrij  v.  DoolitUe,^-*^  on  the  ground  that, 
while  in  one  part  of  the  will  the  devise  to  the  children  of  a 
deceased  brother  was  by  name,  the  gift  to  the  children  of  a 
living  brother  was  "to  the  children  of  R." 

If,  however,  the  devise  is  to  "A  and  his  children"  and  none 
are  in  esse  at  the  testator's  death,  A  alone  is  entitled,^^ 

§  565.  Rule  when  the  period  of  distribution  is  the  termina- 
tion of  a  life  estate:  ^'^  If  no  members  of  the  class  are  in 
existence  at  the  time  the  testator  dies  or  the  settlement  is  made, 
then  the  class  may  increase  at  least  till  the  death  of  the  life 
tenant,  but  not  beyond  that  time.^^  This  is  brought  out  by  the 
cases  where  there  is  involved  the  limitation  of  an  estate  tail  to 
A,  who  is  at  the  time  without  issue.  By  the  Statute  on  En- 
tails ^s  A  at  once  takes  a  life  estate  with  a  contingent  remainder 
to  a  class.  Under  the  decisions  of  our  Supreme  Court  it  is  now 
settled  that  this  remainder  is  the  equivalent  of  a  gift  to  "chil- 
dren." ^^  It  seems  always  to  have  been  assumed  that  all  the 
children  born  to  A  at  any  time  will  take.^"^  If  there  be  one  or 
more  members  of  the  class  in  existence  at  the  time  the  testator 
dies  or  the  settlement  inter  vivos  is  executed,  it  seems  clear 

43  Lancaster  v.  Lancaster,  187  tion  was  whether,  by  the  proper 
111.  540;  Ingraham  v.  Ingraham,  construction  of  the  will,  the  period 
169  111.  432,  467  et  seq.,  semble;  for  the  distribution  of  the  residue 
Handberry  v.  Doolittle,  38  111.  202,  came  at  the  death  of  both  the  tes- 
206,  semble;  Sehuknecht  v.  Schultz,  tator's  daughters  without  leaving  is- 
212  111.  43,  46,  47,  semble;  Low  v.  sue,  or  upon  that  event  and  the  death 
Graff,  80  111.  360,  370 ;  McCartney  of  the  widow,  who  took  no  life  estate 
V.  Osburn,  118  111.  403,  418.  So  in  the  residue  under  the  will, 
where  the  conveyance  is  by  deed  4' Eeed  v.  Welborn,  253  111.  338; 
to  A  and  her  children,  and  one  child  Way  v.  Geiss,  280  111.  152. 

is   then  in  esse,   A   and   that   child  48  Ante,  §  402. 

alone    will    share:    Dick    v.    Eicker,  *»  Ante,   §406. 

222  111.  413.  soVoris    v.    Sloan,    68    111.    588; 

44  .",8  111.  202.  Kyner  v.  Boll,  182  111.  171;   Turner 
45  Davis  V.  Eipley,  194  111.   399.  v.    Hause,    199    111.    464;    Eichard- 

4G  Observe  that  in  Blatchford  v.  son  v.  VanGundy,  271  111.  476; 
Newberry,  99  111.  11,  the  great  ques-       Moore  v.  Eeddel,  259  111.  36, 

650 


Ch.    XXI I J  LIMITATIONS   TO   CLASSES  [§566 

thai  tlio  class  may  incTea.se  until  the  dcalli  of  the  life  tenant, 
l)n(   not  heyontl  that  time.-''^ 

Lancaster  v.  Lancaster/'-  is  soniewhat  j)e('uliar.  'i'here  the  de- 
vise was  to  A  for  life  ''and  to  the  heirs  of  her  body  begotten 
after  her  death."  At  the  time  of  the  testator's  death  A  had 
one  child.  The  court  seems  to  have  said  that  this  one  eliild 
should  take  to  the  exclusion  of  any  others  which  might  after- 
wards be  born  because  the  class  was  determined  at  the  testator's 
death.  It  is  not  clear  that  this  was  neeessarj'  to  the  decision. 
It  must  be  regarded  as  an  oversight.  In  any  view  that  is  taken 
of  the  limitations,  the  period  for  the  deteiTuination  of  the  class 
must,  according  to  the  general  rule,  have  been  the  death  of  the 
life  tenant.  It  is  most  clearly  so  if  they  are  left  as  they  are. 
It  is  equally  so  if  the  rule  in  Shelley's  case,  be  first  applied  and 
then  the  Statute  on  Entails,-'*^*  and  if  the  further  assumption 
be  made  that  under  that  statute  the  remainder  is  substantially 
to  children."' ^  In  Lehndorf  v.  Cope,-'-'  for  instance,  where  an 
estate  tail  was  in  terms  limited,  we  have  the  dictum  of  the  court 
that  the  remainder  created  by  the  statute  went  to  the  children  of 
the  life  tenant  (the  donee  in  tail)  ''in  esse  at  the  time  of  making 
the  deed  [creating  the  estate  tail],  subject  possibly,  however, 
to  be  opened  to  let  in  after-born  children  of  the  same  class." 

§  566.  Suppose  the  property  to  be  distributed  to  the  class 
is  subject  in  part  to  a  life  estate  and  the  gift  to  the  class  is  in 
terms  immediate:  If  there  is  nothing  in  the  will  from  which 
it  could  be  specially  inferred  that  children  born  up  to  the  time 

51  Handberry   v.  Doolittle,  o8   111.  little,    supra,    the   court    found    this 

202;    Mather    v.    Mather,    103    111.  additional  reason  from  the  context 

607;   Cheney  v.  Toese,  108  111.  473,  of     the     will     for     declaring     that 

482;   McCartney  r.  Osburn,  118  111.  children    born    after    the    testator's 

403,  418;    Bates  v.  Gillctt,  132   111.  death  were  included.     In   providing 

287;    Schaefer  v.   Schaefer,   141   111.  for    the    children    of    the    testator's 

337,     345;     Young     v.     Harkleroad,  deceased  brother  Irwin  he  mentioned 

166    111.    318;    Madison   v.    Lannon,  them  by  their  proper  names.     When 

170  111.  65,  81;  Field  v.  Peeples,  180  he  devised  to  children  of  his  living 

111.   376,   381;    Ebey  v.  Adams,   135  brother   Rawley  he   did   so  by   nam- 

111.   80;    Schuknecht  v.   Schultz,  212  ing  them  as  a  class. 
111.  43,  47,  48 ;   Pitzel  v.  Schneider,  52  187  111.  540,  546. 

216  111.  87;  Dwyer  v.  Cahill,  228  111.  ^^  Anie,   §  420. 

617;    Dime  Savings   Co.    c.   Watson,  ^*  Ante,  §406. 

254  111.  419.     In  Handberry  r.  Doo-  ■>■'  122  111.  317,  330. 

651 


§  567]  FUTURE    INTERESTS  [Ch.    XXII 

of  the  death  of  the  life  tenant,  or  later,  were  intended  to  share, 
the  rule  of  the  English  eases  ^^  would  seem  to  be  that  only  chil- 
dren born  at  the  death  of  the  testator  could  take.^'''  In  ac- 
cordance with  this  holding  the  class  of  grandchildren  in  Howe 
V.  Hodge,^^  must  have  been  determined,  as  regards  the  whole 
estate,  including  that  part  subject  to  a  life  interest,  not  when 
the  life  tenant  died,  but  when  the  time  came  for  actually  pay- 
ing over  a  share  to  one  of  the  members  of  the  class,^^  that  is, 
when  the  eldest  grandcliild  reached  tAventy-five. 

§  567.  Rule  when  the  period  of  distribution  comes  because 
of  the  happening  of  a  contingency  to  a  member  of  the  class — 
Where  there  is  a  contingent  gift  to  the  children  of  A  who 
reach  twenty-five :  The  first  period  of  distribution  here  comes 
when  the  first  child,  whether  the  first  born  or  otherwise,  actually 
reaches  twenty-five.  If  a  specific  sum,  or  a  residue,  be  left  to 
be  distributed  among  the  whole  class,  then  the  class  will  deter- 
mine at  that  time.^*^ 

§,568.  Where  the  gift  to  the  class  is  vested:  Suppose  the 
gift  to  the  class,  instead  of  being  contingent  upon  the  members 
of  it  reaching  a  certain  age,  is  vested  in  interest  at  once  upon 
the  testator's  death  or  the  execution  of  the  settlement  inter 
vivos,  but  subject  to  a  postponed  enjoyment  until  the  members 
of  the  class  respectively  reach  a  certain  age, — let  us  say  twenty- 
five.  Apart  from  any  question  of  remoteness  in  the  gift  to  the 
class,  or  of  the  invalidity  of  the  postponed  enjoyment  clause 

56  Coventry    v.    Coventry,    2    Dr.  class  remained  open  as  to  the  whole 

&    Sm.    470;    Hill    v.    Chapman,    1  estate  till  the  end  of  the  life  estate 

Ves.    405;     Hagger    v.    Payne,    23  in  part,   seems   to  have   gone   upon 

Beav.   474;    Hawkins   on  Wills,    74-  the  ground  that  by  the  special  con- 

75 ;  Theobald  on  Wills,  2nd  ed.  24G ;  text    of    the    will    involved    all    the 

2  Jarman  on  Wills,    ( 6th  ed.  Bige-  grandchildren  born  at  any  time  were 

low),  star  page  1013.  included. 

"  A    North    Carolina    case,    Brit-  ^s  152  111.  252. 

ton  V.  Miller,  63  N.  C.  268,  270,  an-  59  Post,  §  568. 

nouncing  a  little  different  rule,  did  6«  This  rule  yields  to  the  special 

not  go  farther  than  to  let  children  context    of    the    instrument,    as    in 

born  after  the  testator's  death,  but  Ingraham  v.  Ingraham,  169  111.  432, 

before   the   termination   of   the   life  469,   where  the   distribution   was  to 

estate,    share    in   that    part    subject  occur  to  nephews  and  nieces  if  they 

to  the  life  estate.  should  be  at  any  time  during  their 

Annable  v.  Patch,  3  Pick.  (Mass.)  respective  lives  in  need,  but  by  the 

360,    where    it    was    held    that    the  words   describing    the   nephews   and 

652 


Cir.    XXII]  LIMITATIONS   TO    CLASSES  [§568 

itself  because  it  may  last  too  lontr,  the  postponement  would  be 
valid.  It  is  of  course,  valid,  where  (Uaflin  v.  Claflin,'''^  is  law. 
It  is  equally  valid  under  the  English  cases  "^  which  recognize 
as  a  general  rule  that  these  postponements  of  absolute  equitable 
interests  beyond  the  period  of  the  crstui\s  minority  ape  bad. 
There  the  postponement  is  said  to  be  valid  as  a  relaxation  of 
the  general  rule  when  the  sustaining  of  it  is  for  the  benefit  of 
persons  otiier  tiian  tlie  cestui — viz.,  other  members  of  the  class.''"' 

When  doCvS  the  class  determine  in  such  a  case  ? 

This  depends  according  to  the  usual  rules  for  the  determina- 
tion of  classes  upon  the  time  when  the  first  period  of  distribu- 
tion arrives.  There  are  three  possible  points  of  time  at  which 
tiiis  may  occur.  First,  when  the  first  child  living  at  any  time 
reaches  twenty-five;  second,  when  the  eldest  child  actually 
reaches,  or  if  he  had  lived,  would  have  reached  twenty-five; 
third,  when  the  eldest  child  reaches  twenty-five  or  dies  under 
that  age.  It  is  submitted  that  the  first  time  indicated  is  out 
of  the  question.  It  would  of  course  lead  to  absurdity  where 
all  the  children  die  under  twenty-five.  There  can  be  no  reason 
for  thus  adopting  a  view  which  may  in  fact  greatly  extend  the 
time  for  the  paj^ment  of  the  share  of  the  children  beyond  the 
period  actually  expressed  in  the  testator's  will."'*  As  between 
the  second  and  third  views  perhaps  a  choice  may  be  difficult .'••'' 
The  English  cases  have  held  that  the  second  is  the  proper  period 

nieces  as  those  "who  are  the  chil-  tion   of  classes  be  too  remote.     As 
dren"    of    the    testator's    brothers  the   eldest   grandchild   in    that  case 
and  sisters,  the  class  was  determined  was  ten  years  old  at  the  testator 's 
at  the  testator's  death.  death,    such     an    assumption    must 
81 149    Mass.    19,   post,    §§  732    et  have    proceeded    upon    the    supposi- 
seq.  tion    that    the    first    period    of    dis- 
ss Oppenheim   v.   Henry,   10    Hare  tribution  does  not  come  till  the  first 
441.  grandchild  born  at  any  time  actually 
03  Post,  §  680.  reaches    twenty-five.      Such    a    pre- 
64  Comments      upon      Kevern      v.  mise   is,   it   is   believed,   out  of   the 
Williams,  5  Sim.  171   (1832),  have,  question. 

it  is  believed,  assumed  the  gift  to  «5  The  attitude  of  the  court  in 
the  grandchildren  of  the  testator's  Howe  v.  Hodge,  152  111.  252,  re- 
living brother,  which  was  vested,  garding  the  increase  of  the  class 
but  subject  to  a  postponement  of  seems  consistent  with  either  view, 
payment  till  each  respectively  since  tne  eldest  grandchild  in  esse 
reached  twenty-five,  would,  upon  at  testator 's  death  was  over  four 
the    usu.nl    rule    for    the    determina-  years  old. 

653 


§  569; 


FUTURE    INTERESTS 


[Ch.  XXII 


of  distribution,""  except  Avhere  the  whole  interest  of  the  legacy 
is  given  to  the  legatee  in  the  meantime."*'  In  that  case  the 
inference  is  that  the  third  period  is  the  proper  one  because  it  is 
the  earlier,  the  postponement  is  purely  personal  to  the  legatee,^^ 
and  the  actual  rights  of  others  to  the  income  or  interest  are  not 
affected  by  its  adoption. 

§  569.  Where  the  gift  is  to  the  children  of  A,  to  be  divided 
among  them  when  the  youngest  reaches  twenty-one :  What  is 
meant  by  the  "youngest?"'  Does  it  mean  the  youngest  living 
at  the  testator's  death,  the  youngest  of  all  the  children  living 
at  any  one  time,  or  the  youngest  of  any  that  may  ever  be  born? 
It  is  believed  that  our  Supreme  Court  has  never  had  to  go 
farther  than  to  hold  that  it  meant  the  youngest  of  those  living 
at  the  testator's  death,  for  in  the  only  two  cases  in  this  state 
-where  the  point  has  been  raised,  the  youngest  living  at  the  tes- 
tator's death  had  not  reached  the  required  age."^  In  both 
cases,  however,  the  court  refers  to  a  child  born  subsequent  to 


cGEoden  v.  Smith,  Amb.  588 
(1744)  ;  Maher  v.  Maher,  1  L.  R. 
Ir.  22   (1877). 

«"  Roden  v.  Smith,  supra. 

«8  In  support  of  this,  see  the  hint 
in  Claflin  v.  Cliflin,  149  Mass.  19, 
to  the  effect  that  a  creditor  or  gran- 
tee of  the  cestui  might  be  entitled 
to  immediate  possession  of  the  prop- 
erty, although  the  cestui  had  not 
reached  the  age  set  for  the  distri- 
bution. Consistent  with  this  sug- 
gestion as  well  as  with  the  view 
that  the  postponement  is  wholly 
void,  are  Sanford  v.  Lackland,  2 
Dill.  (U.  S.)  6,  (Gray's  Restraints 
on  Alienation,  2nd  ed.  §114),  and 
Havens  r.  Healy,  ir,  Barb.  296 
(id.  §116).  Note,  also,  that  in 
Lunt  V.  Lunt,  108  111.  307,  the 
postponed  enjoyment  clause,  so  far 
as  it  affected  the  share  of  the 
youngest  child  would  last  for  too 
long  a  time,  unless  by  its  proper 
construction  it  was  operative  only 
until  the  devisee  actually  reached 
thirtv  or  iii('(l  under  that  ago,  since 


the  youngest  child  was  only  one  year 
old  at  the  testator's  death.  The 
actual  holding  of  the  postponement 
valid  is  really  a  decision  that  the 
postponement  only  continues  till 
the  devisee  reaches  thirty,  or  dies 
under  that  age. 

G9  In  Handberry  v.  Doolittle,  38 
111.  202,  the  child  of  A,  born  after 
the  testator 's  death  but  when  the 
youngest  child  living  at  the  testa- 
tor's death  was  only  seven  years 
old,  was  permitted  to  share.  In 
McCartney  v.  Osburn,  118  111.  403, 
partition  proceedings  were  held  to 
have  been  prematurely  brought, 
where  a  child  of  A,  born  after  the 
testator's  death,  had  not  reached 
twenty-one.  It  is  fair  to  infer, 
however,  that  A's  youngest  child 
living  at  the  testator's  death  had 
not  reached  twenty-one  because  A 
was  a  woman  and  had  borne  seven 
other  children  at  the  time  of  the 
testator's  death  and  one  born  a 
year  afterwards. 


654 


ClI.    XXI I J  LIMITATIONS   TO    CLASSES  [^-"JTl 

the  testator's  death  as  the  "yoiin<^est"  chihl  designated,  and 
gives  the  impression  that  tlie  period  of  disti-ihution  would  not 
arrive  until  thai  child  reached  the  i-e(|uired  ajre.  This  would 
suggest  the  rule  that  the  j)eriod  of  disti'ihut ion  arrived  when 
all  the  ehildren  living  at  any  one  time  had  reaehed  the  rcfiuired 
age. 

j$  570.  Where  the  gift  is  after  a  life  estate  to  such  children 
of  A  a.s  reach  twenty-one:  If  the  preceding  life  estate  is  in 
A  then  the  class  closes  at  A's  death  and  then  only.  If  the 
life  interest  is  in  one  other  than  A,  then  the  class  closes  only 
upon  the  happening  of  two  events,""  — the  termination  of  the 
life  estate  and  the  coming  of  the  time  when  the  eldest  member 
of  the  class  actually  reaches  twenty-one,  or  would  have  done 
so  had  he  lived,  or,  perhaps,  wlien  he  reaches  that  age  or  dies 
before  attaining  itJ^ 

TITLE  V. 

MEANING  OF  "HEIRS"  IN  A  LIMITATION  TO  THE  TESTATOR'S 
"HEIRS,"  OR   THE   "HEIRS"   OF   A  LIVING   PERSON. 

§571.  Primary  meaning  of  "heirs":  The  primary  mean- 
ing of  "heirs,"  in  a  gift  to  the  heirs  of  the  testator  or  of  a  living 
person,  includes  those  persons  who  answer  the  description  of 
heirs  at  the  testator's  or  living  person's  death.  It  cannot  desig- 
nate anyone  prior  to  tliat  time  because  a  person  while  alive  can 
have  no  heirs.'^'*  Nor  can  it  be  confined  to  a  special  class  of 
heirs,  such  as  collateral  heirs  by  blood,  so  as  to  exclude  an 
adopted  child  who  is  a  statutory  lineal  heir.  Thus  in  Buffer- 
field  V.  Sawyer  "^^^  where  the  limitations  were  by  deed  to  a  daugh- 
ter for  life,  then  to  her  children,  and  in  default  of  such  children 
to  her  "heirs  generally,"  except  George   (a  brother),  "heirs" 

-oPitzel  V.  Schneider,  21ti  Til.  87.  Ayers  r.  Chicago   T.  &  T.  Co.,  187 

7i^H<^.  §  .568.  Til.    42.   fift;    Hark    v.    Shawen.    19.0 

71a  In    its    primary    meaning    the  III.     47;     Kirkpatriek     v.     Kirkpat- 

word  "heirs"  refers  to  persons  en-  rick,  197  111.   144,  151,  152;   Hill  r. 

titled    to   sueeeed    in    ease   of   intes-  Oianelli,  221   111.   286;    Carpenter  v. 

tacy;     Rawson    v.    Rawson,    ;)2    111.  Hubbard,    26.'?    111.    571;    People    r. 

62;  Riehards   r.  Miller,  62  111.  417;  Camp,  286  111.  511;  Henkins  r.  Hen- 

Kelley  r.  Vigas,  112  111.  242;   Kel-  kins,  287  111.  62. 

lett   )'.   Shepard,   U9  111.  433,  442;  Tin  187  111.  598. 

Smith  r.  Kimbell,  153  111.  368,  375; 

655 


§  572]  FUTURE    INTERESTS  [Ch.    XXII 

meant  tliose  persons  whom  the  statute  designated  as  heirs  and 
the  adopted  child  was  included."-  So  far  as  heirs  by  blood 
are  coucerned  the  Statute  on  Descent  determines  who  are  in- 
cluded in  a  gift  to  heirs.  AVhether  a  surviving  spouse,  or  an 
adopted  child,  who  are  heirs  by  the  statute  are  included,  is 
considered  post,  §§  573,  574,  584  et  seqJ'^ 

The  statute  also  determines  the  quantity  of  state  which  each 
heir,  who  is  included,  takes.'''"*  Our  Supreme  Court  has  recog- 
nized and  followed  "^^  the  general  rule  stated  by  Jarman  '^'^  that 
if  a  gift  be  made  to  one  person  and  the  children  of  another — 
as,  for  instance,  to  A  and  the  children  of  B — A  and  the  children 
of  B  in  such  case  primarily  take  per  capita  and  not  per  stirpes. 
But  this  construction  yields  to  a  very  faint  glimpse  of  a  dif- 
ferent intention  in  the  context,  which  was  found  by  the  court 
in  the  eases  in  this  state  recognizing  the  general  rule.  Where, 
however,  the  gift  is  to  the  "heirs  of  A"  and  A  leaves  as  his 
heirs  a  child  and  the  children  of  a  deceased  child,  the  children 
of  the  deceased  child  will  take  only  the  share  their  parent  would 
have  taken.  Hence  the  distribution  is  per  stirpes  and  iiot  per 
capita."'^  The  heirs  will,  however,  take  per  capita  if  such  in- 
tention is  clearly  expressed.'''^  It  should  be  observed,  however, 
that  the  direction  to  "divide  equally  among  my  heirs"  is  not 
sufficient  to  induce  a  construction  that  the  heirs  take  per  capita 
and  not  per  stirpes.^^ 

§  572.  Gift  to  the  testator's  heirs  where  a  preceding-  inter- 
est is  expressly  limited  to  one  who  is  an  heir  or  the  sole  heir 
of  the  testator  at  his  death:     Suppose  the  testator  limits  a 

"2  Posf,  §§  584  e«  seg.  "2    Jarman    on    Wills     (6th    ed. 

"3  Whether   an    illegitimate    child,  Bigelow),  star  pages  1050,   1051. 
who    is    heir    of    its   mother,    is    in-  t8  Eichards  v.  Miller,  62  111.  417, 

eluded,  see  ante,  §  140.  425    (what  law   governed   was   here 

"5  Kelley   v.  Vigas,   112   111.   242;  also    considered);    Kelley    v.    Vigas, 

Richards    v.     Miller,    62     111.    417;  112  111.  242;   Thomas  v.  Miller,  161 

Kirkpatrick  v.  Kirkpatriek,  197  111.  111.   60,   72-7.3;   Kirkpatriek  v.  Kirk- 

144,    1.50,    152;    Thomas    v.    Miller,  patrick,  197  111..  144.  148,  149.     See 

161   111.   60,   7.3.     But   the  terms  of  also   Young   v.   Harkleroad,  166   111. 

the    will    may    include    a    different  318. 

quantity  or  distribution,  as  in   Au-  '»  Auger  v.  Tatham,  191  111.  296. 

ger  V.  Tatham,  191  111.  296.  so  Kelley   v.   Vigas,   112   111.   242; 

■^6  Pitney   v.   Brown,   44   111.   363;  Kirkpatrick  v.  Kirkpatrick,  197  111. 

McCartney  v.  Osburn,   118  111.   403,  144. 
424. 

6516 


Ch.    XXII]  LIMITATIONS   TO   CLASSES  [§  572 

future  interest  after  a  life  estate,  or  a  sliifting  executory  devise 
after  a  fee,  to  his  heirs  or  next  of  kin.  What  is  the  scope  of 
the  word  "heirs?"  Does  it  mean  the  testator's  heirs  at  the 
time  of  his  death  or  those  persons  who  would  have  been  the 
testator's  heirs  if  he  had  died  at  the  time  of  the  death  of  the 
life  tenant?  Of  course,  the  primary  meaning  of  "heirs"  is 
heirs  of  tlie  testator  at  the  time  of  his  death.^^  and  this  will 
be  the  meaning?  of  heii-s  in  the  cases  put  unless  something  ap- 
pear to  lead  to  a  contrary  conclusion.^2  The  testator  may,  no 
doubt,  by  apt  words,  make  his  meaning  perfectly  clear.  But 
suppose  he  does  not  do  so.  Under  what  circumstances  will  a  court 
undertake  to  say  that  those  persons  wlio  would  have  been  the 
testator's  heirs,  if  he  had  died  at  the  time  of  the  life  tenant's 
death  or  upon  the  termination  of  the  fee,  are  meant? 

The  above  problem  has  come  up  in  Illinois  in  this  form :  The 
testator  devises  to  A  for  life,  and  if  A  dies  without  issue  living 
at  his  death  then  to  the  testator's  heirs  at  law.  Suppose  A  is 
one  of  several  heirs  at  law  of  the  testator.  Following  the  lead- 
ing English  case  of  Holloway  v.  Ilolloway  «•>  our  Supreme  Court 
has  held  that  under  these  circumstances  there  is  nothing  to 
prevent  "heirs"  from  having  its  primary  meaning  of  heirs  of 
the  testator  at  the  time  of  his  death.^"*  If,  on  the  other  hand, 
the  life  tenant.  A,  is  the  sole  heir  of  the  testator  at  the  time 
of  his  death,  it  may  be  argued  that  the  giving  of  the  life  tenant 
a  fee  in  remainder  would  defeat  the  plain  gift  of  the  life  estate. 
Johnson  v.  Askey  ^^  took  this  view  and  held  that  "heirs"  meant 
those  persons  who  would  have  been  the  testator's  heirs  if  he 
had  died  at  the  time  of  the  death  of  the  life  tenant.  In  Bond 
V.  Moore,^^  where  the  life  tenant  was  the  sole  heir  at  law,  coun- 

81  Clark   V.    Shawen,    190    111.   47;  a  strong  special  context  against  it. 
Kellett  V.  Shepard,  i:59  111.  433,  442;  83  5  Ves.  399. 

Kelley  v.  Vigas,  112  111.  242;   Rich-  s^  Kellett  v.  Shepard,  139  111.  443; 

arcls  V.  Miller,   62  111.  417;  Rawson  Henkins    v.    Henkins,    287    111.    62. 

V.  Rawson,  52  III.  62;  Ayers  v.  CM-  See    also   reasoning   of   Downing   v. 

cago  T.  &  T.   Co.,  187  111.  42,  60,  Grigsby,  251  111.  568,  574.     Thomas 

semble;  Kirkpatriek  v.  Kirkpatrick,  v.  Miller,  161  111.  60,  72,  seems  con- 

197   111.    144,   151-152;    Hill  v.  Gia-  tra. 
nclli,  221  111.  286.  «=  190  111.  58. 

8i  Brown   r.    Brown,  253   111.   466.  m- 236   111.   576.     See   also   Mcsser 

S  111.  Law  Rev.  121,  where  the  pri-  v.  Baldwin,  262  111.  48. 
mary  meaning  persisted  in  spite  of 

Kales  Fut.  Int. — 42  g57  ' 


§  572]  FUTURE    INTERESTS  [CH.    XXII 

sel  admitted  that  the  same  result  was  proper  and  the  court 
followed  the  admission.  Recently,  however,  in  People  v.  Camp  ^7 
the  court  appears  to  have  held  that,  where  two  life  tenants 
were  the  sole  heirs  at  law  of  the  testator,  the  remainder  to 
''heirs  at  law''  included  them  and  could  not  by  any  possibility 
include  a  nephew.  It  is  worth  noting  that  the  present  tendency 
of  the  English  cases  is  to  retain  the  primary  meaning  of  "heirs," 
even  where  the  life  tenant  is  the  sole  heir  of  the  testator.^^ 
This  position  is  taken  upon  the  ground  that  the  gift  to  "heirs" 
is  only  put  in  to  fill  a  gap  and  prevent  an  intestacy.  There  is, 
therefore,  no  absurdity  in  the  life  tenant  taking  all.  In  Car- 
penter V.  Hubhard  ^^  the  limitations  were  of  real  estate  to  the 
testatrix's  husband  for  life,  then  to  the  children  of  the  mar- 
riage for  life,  and  then  to  the  heirs  at  law  of  the  husband.  It 
was  insisted  that  heirs  meant  those  persons  who  would  have 
been  the  husband's  heirs  if  he  had  died  at  the  time  of  the  death 
of  the  children,  thus  excluding  the  children.  This  was  based 
upon  the  fact  that  the  children  were  presumptively  the  hus- 
band's sole  heirs  at  law.  This,  however,  was  only  a  probability 
and  not  a  certainty  and  the  primary  meaning  of  "heirs  at 
law"  prevailed. 

Suppose  the  testator  devises  to  A  in  fee,  and,  if  A  dies  with- 
out issue  living  at  his  death,  then  to  the  testator's  heirs  at  law. 
If  A  is  one  of  several  heirs  at  law  of  the  testator,  will  "heirs" 
have  its  primary  meaning  of  heirs  of  the  testator  at  the  time 
of  his  death  ?  It  is  believed  the  answer  should  be  in  the  affirma- 
tive, because  there  is  no  absurdity  in  taking  away  the  whole 
fee  from  A  and  giving  back  part  to  him.  There  is  much  in 
Burton  v.  Gagnon  ^^  in  support  of  this  view.  There  the  de- 
vise was  to  the  testator's  two  children  with  the  proviso  "that 
should  all  of  my  children  die  intestate  and  without  lawful  is- 
sue" then  over  to  the  "heirs  at  law  of  my  deceased  father." 
This  last  was  declared  to  mean  those  who  were  the  father's  heirs 
at  the  time  of  the  testator's  death,'^^  in  spite  of  the  fact  that 

8T  286  111.  511.  85   L.   T.   R.  455;    Rand  v.   Butler, 

88  Bird   V.    Luckie,    8    Hare    301;  48  Conn.  293;   Stokea  >.  VanWyck, 

Theobald  on  Wills,  2nd  ed.  280-281 ;  83  Va.  724. 

Rawlinson    v.    Wass,    9    Hare    673;  89  263  111.  571. 

Wrightson  v.  Macaulay,  14  M.  &  W.  so  180  111.  345. 

214;    Me   Frith;   Hindson   v.  Wood,  9i  Why     did     not     the     gift     to 

658 


Cn.    XXII]  LIMITATIONS   TO   CLASSES  [§573 

by  so  doing  tlic  two  cliildreu  oi'  tlie  testator  who  took  the  fee, 
subject  to  the  executory  devise,  were,  witli  others,  included  in 
this  meaninf?  of  'heirs,"  and  so  took  as  executory  devisees  over. 

Where  the  remainder  to  "heirs"  is  to  those  who  are  heirs  at 
the  testator's  death,  the  remainder  is  not  subject  to  any  condi- 
tion precedent  that  such  heirs  must  survive  the  death  of  the 
life  tenant.^-  It  is,  therefore,  clearly  vested  in  the  feudal  sense 
and  not  destructible  oi-  alienable. 

^  573.  Whether  a  surviving-  spouse  is  included  in  a  gift  to 
the  deceased  spouse's  heirs  at  law — (1)  Where  no  preceding 
interest  is  limited — Distributive  construction:  Where  a 
spouse  dies  without  issue  living,  tiic  surviving  .spouse  is  an  heir 
at  law  by  the  statute  and  entitled  to  succeed,  as  such  heir  at 
law,  to  one-half  the  deceased  spouse's  real  e.state.^^  The  .sur- 
viving spouse  is  entitled  to  all  of  the  deceased's  personal  prop- 
erty. Where  the  devise  is  to  the  "heirs"  of  the  deceased  spouse, 
who  leaves  no  issue,  and  the  gift  is  to  take  effect  immediately 
upon  the  testator's  death  without  any  intervening  estates,  it 
seems  regularly  to  have  been  held  that  the  surviving  spouse 
was  included  as  an  heir  at  law.-*'*  If,  however,  the  spouse  dying 
leaves  is.sue,  the  surviving  spouse  is  not  an  heir  .so  far  as  the 
real  estate  is  concerned,  but  is  entitled  as  distributee  to  one- 
third  of  the  personal  estate.  In  the  absence  of  a  special  context 
requiring  the  contrary,  an  immediate  gift  of  real  estate  to  the 
testator's  "heirs"  will  not  include  the  surviving  spouse  where 
the  deceased  spouse  leaves  issue.  In  Gauch  v.  St.  Louis  Mutual 
Life  Insurance  Co.^^'  it  was  held  that,  where  the  proceeds  of 
an  insurance  policy  were  involved  the  surviving  spouse  was  not 
included.  But  in  Walker  i\  Walker,^^  where  only  personal 
property  Avas  devised   to  the  "heirs  at  law  according  to  the 

'*  heirs "  mean  heirs  of  the  father  at  111.    481;     Sutherland     v.    Harrison, 

the    father's   death?      If    it   had    it  86  111.   :i6:5. 

would    have    included    the    testator  «*  Rawson  v.  Rawson,  52  111.  62; 

himself,   and    so    there    would    have  Richards    v.    Miller,    62    111.     417; 

been  an  intestacy  as  to  part.     This  Alexander    v.    Masonic    Aid    Assn., 

was   obviously    not   intended.  126   111.   558. 

92  Clark   V.    Shawen,    190    111.    47;  05  S8   111.   251. 

Minot   V.    Tappan,    122    Mass.    535.  96  283    111.    11.      See   also   Alexan- 

Contra,  Forrest  v.  Porch,  100  Tenn.  der    r.   Masonic   Aid   Assn.,  126   111. 

391.  558;  Clay,  etc.  r.  Clay,  63  Ky.  295; 

93  Sutherland    r.    Sutherland,    69  Lawton   r.  Corlies,  127  N.  Y.   100 ; 

659 


§  574]  FUTURE    INTERESTS    •  [Ch.    XXII 

statute  of  descent  in  the  State  of  Illinois"  of  beneficiaries  who 
predeceased  the  period  of  distribution,  it  was  held  that  the  sur- 
viving spouse  was  included  even  though  the  deceased  spouse 
left  issue.  If,  however,  a  blended  fund  of  real  and  personal 
property  is  devised  to  "heirs,"  "heirs"  has  usually  been  re- 
fused a  distributive  construction  and  has  been  given  the  mean- 
ing as  to  the  whole  fund  which  it  has  when  applied  to  real 
estate  alone.^" 

§  574.  (2)  Where  a  preceding  interest  for  life  is  limited 
to  the  spouse  with  a  gift  over  to  the  testator's  heirs:  If  there 
are  no  surviving  issue  of  the  marriage  and  only  personalty 
fS  involved,  the  wife  is  not  only  life  tenant  but  sole  statutory 
heir  and  distributee.  To  avoid,  therefore,  the  incongruity  of 
such  spouse  taking  the  whole  where  only  a  life  estate  was  ex- 
pressly limited,  the  surviving  spouse  may  be  excluded.^^  If 
there  is  no  issue  and  only  realty  is  involved  the  situation  is  more 
difficult  because  the  spouse  surviving  takes  only  one-half  the 
real  estate  as  heir  and  the  incongruity  is  removed.  In  Black 
V.  Jones  ^9  the  widow  was,  nevertheless,  excluded.  If  a  mixed 
fund  of  real  and  personal  property  be  devised  to  the  wife  for 
life  and  then  to  the  testator's  heirs  at  law,  the  problem  of  con- 
struction is  especially  difficult.  If  the  widow  as  heir  would  take 
only  one-half  the  realty  and  one-half  the  personalty  she  might 
claim  that  no  incongruity  of  result  would  prevent  her  from 
being  included  in  the  term  "heir."  If,  however,  she  insists 
upon  a  distributive  construction  so  that  she  would  take  all  the 
personalty  and  one-half  the  realty  as  heir,  there  is  a  substantial 
approach  to  an  incongruity  fatal  to  her  claim.  Obviously  a 
very  slight  special  context  against  the  inclusion  of  the  widow 
will  be  effective  to  exclude  her.^ 

In  re  Ashton's  Estate,  134  Pa.  St.  does  not  seem  to  be  particularly 
390;  Kendall  v.  Gleason,  152  Mass.  mooted  or  discussed.  Furthermore, 
457.  (In  the  last  two  cases  there  although  a  blended  fund  of  real 
was  a  trust  for  conversion.)  and  personal  property  was  involved, 

97  Allison  V.  Allison,  101  Va.  537;       yet  the  report  of  the  case  states  that 
Olney  v.  Lovering,  167  Mass.  446;       there  was  no  real  estate. 
Heard    r.    Bead,    169    Mass.    216;  ^^Ante,  §572. 

Schouler    on    Wills,    5th    ed.,    sees.  09  264  111.  548. 

542,   547;    2   Jarman   on   Wills,   .5th  i  Smith   v.  Winsor,   239   111.   567; 

Am.  ed.,  star  pages  62,  82,  Eaw-  McGinnis  i;.  Campbell,  274  111.  82. 
son    V.    Eawson,    52    111.    62,    seems  NOTE   on   cases   where   "heirs" 

contra,  but  the  question  here  raised       h^s  been  construed  to  mean  ' '  chil- 

660 


Cn.  XXII] 


LIMITATIONS   TO   CLASSES 


§575 


TITLE   VI. 
MEANING   OF   "ISSUE"   IN   GIFTS   TO    "ISSUE."-; 

§575.  The  primary  meaning-  of  "issue" — "Issue"  as  in- 
cluding- descendants  and  as  limited  to  children:  If  property 
be  limited  to  tlie  "issue  of  A,"  "issue''  primarily  means  the 
deseendants  or  issue  in  every  generation  from  A.  It  includes 
A's  children,  grandchildren  and  great-grandchildren  and  so  on."^ 


dren" :  In  a  number  of  eases,  how- 
ever, the  word  "heirs"  under  the 
special  context  of  the  instrument  in 
which  it  occurs,  was  held  to  mean 
"children":  Richards  v.  Miller,  62 
111.  417,  423,  424;  Bland  v.  Bland, 
103  111.  11,  17;  Kelley  v.  Vigas, 
112  111.  242;   McCartney  v.  Osburn, 


the  question  was  simply  ujion  con- 
flicting clauses  of  a  will  whether 
the  testator  had  devised  to  all  his 
children  or  only  to  his  minor  chil- 
dren. 

See  also  Schaefer  v.  Schacfer, 
141  111.  337,  342  where  "children" 
was  held  equivalent  to  "heirs"  as 


118  IlL  403,  413;   Carpenter  v.  Van       a  word  of  limitation.     Ante,  §169. 


Olinder,  127  111.  42,  50;  Seymour  v. 
Bowles,  172  111.  521;  Fishback  v. 
Joesting,  183  111.  463;  Gannon  v. 
Peterson,  193  111.  372,  397;  Brads- 
by  V.  Wallace,  202  111.  239 ;  Dunshee 
V.  Dunshee,  251  111.  405;  Hull  v. 
Hull,  286  111.  75.  See  also  Hobbie 
V.  Ogden,  178  111.  357;  72  111.  App. 
242. 

Observe  the  cases,  ante,  §  414, 
under  the  Rule  in  Shelley's  Case; 
also  cases,  ante,  §  552,  on  the  mean- 
ing of  "heirs"  when  there  is  a 
gift  over  if  the  first  taker  dies 
"without  heirs. " 

For  the  construction  of  the  word 
' '  children  "  so  as  to  include  grand- 
children, see  Arnold  v.  Alden,  173 
111.  229;  Anderson  v.  Williams,  262 
111.  308. 

In  McCoy  V.  Fahrney,  182  111. 
60,  a  post-nuptial  settlement  di- 
rected the  trustee  upon  the  death 
of  the  settlor 's  wife  to  convey  all 
lands  held  in  trust  to  * '  all  the  chil- 
dren" of  the  wife.  Held,  only 
children  of  the  wife  by  the  grantor 
were  included. 

In    Bland   v.    Bland,    103    111.    11, 


2  ' '  Descendants ' '  is  co-extensive 
in  meaning  with  ' '  issue : ' '  Bates  v. 
Gillett,  132  111.  287,  297. 

3  Cook  V.  Cook,  2  Vern.  545 ; 
Davenport  v.  Hanbury,  3  Ves.  Jr. 
257;  Freeman  v.  Parsley,  3  Ves. 
Jr.  421 ;  Maddock  v.  Legg,  25  Beav. 
531;  Weldon  v.  Hoyland,  4  De  G. 
F.  &  J.  564;  Hobgen  v.  Neale,  11 
Eq.  Cas.  48 ;  In  re  Jones '  Estate, 
47  L.  J.  Ch.  775;  Surridge  v.  Clark- 
son,  14  W.  R.  979;  Edyvean  v. 
Archer  [1903],  A.  C.  379;  Southam 
V.  Blake,  2  W.  R.  446;  Birdsall  r. 
York,  5  Jur.  N.  S.  1237;  Cowling 
V.  Thompson,  19  L.  T.  N.  S.  242; 
In-  re  Sibley's  Trusts,  5  Ch.  Div. 
494;  Wistar  v.  Scott,  105  Pa.  St. 
200;  Pearce  v.  Rickard,  18  R.  I. 
142;  Price  v.  Sisson,  13  N.  J.  Eq. 
168;  Weehawken  Ferry  Co.  v.  Sis- 
son,  17  N.  J.  Eq.  475;  Soper  v. 
Brown,  136  N.  Y.  244;  Schmidt  v. 
Jewett,  195  N.  Y.  486;  Phelps  v. 
Cameron,  96  N.  Y.  Supp.  1014;  Bas- 
sett  V.  Wells,  106  N.  Y.  Supp.  1068; 
Ridley  v.  MePherson,  100  Tenn.  402 ; 
Hall  V.  Hall,  140  Mass.  267;  Dex- 
ter V.  Inches,  147  Mass.  324;   Hills 


661 


§  57')]  FUTURE    INTERESTS  [CH.    XXII 

Of  course,  "issue"  may  bo  construed  to  mean  children  if  a 
special  context  be  present  upon  Avliich  such  a  construction  can 
be  based.'*  A  very  frequent  special  context  recognized  by  the 
English  cases  as  sufficient  to  turn  issue  into  children  is  thus  in- 
dicated in  Theobald  on  Wills :  ^  "  The  generality  of  the  word 
issue  will  be  restrained  if  the  testator  explains  that  he  meant 
by  issue  children.  This  will  be  the  case  if  the  word  issue  is 
coupled  with  father  or  mother  or  parent:  for  instance,  if  in  a 
substitutional  gift  to  issue,  the  issue  are  directed  to  take  their 
parent's  share."  This  rule  rests  upon  the  fact  that  the  word 
"parent''  as  used  in  the  substitutionary  clause  refers  solely  to 
the  person  in  whose  place  tlie  issue  are  to  take.  This  view  of 
the  use  of  the  word  parent  has  been  regularly  accepted  in  Eng- 
land but  not  without  criticism.**  It  has  been  followed  in  this 
country  in  a  few  cases.'''  But  there  is  a  strong  tendency  here 
to  repudiate  it  and  to  give  to  the  word  issue  its  primary  mean- 
ing as  including  all  descendants,  in  spite  of  the  use  of  the 
express  direction  that  the  issue  of  any  deceased  legatee  shall 
take  the  parent's  share.  The  word  parent  is  regarded  as  used 
in  a  recurring  or  sliding  sense,  so  as  to  apply  to  successive  gen- 
erations of  issue,  so  that  no  descendant  can  be  included  in  issue 
wlio  has  an  ancestor  living.^ 

V.  Barnard,  152  Mass.  67;   Jackson  use  of  the  word  parent  will  be  suflS- 

i;.  Jackson,  153  Mass.  374;  Gardiner  cient    to   turn   issue    into   children). 

V.    Savage,    182    Mass.    521;    Union  See  Arnold  v.   Alden,   173  111.  229, 

Safe    Deposit    v.    Dudley,    104    Me.  239. 

297;    Corbett   v.   Laurens,   26   S.   C.  «  Dexter  r.  Inches,  147  Mass.  324 

Eq.  301.  -  Hills    v.    Barnard,    152    Mass.    67 

4  Arnold    v.    Alden,    173    111.    229,  Jackson  v.  Jackson,  153  Mass.  374 
238;    Gannon   v.   Peterson,    19:!   111.  Union   Safe  Deposit  v.  Dudley,  104 
372    379.  Me.    308;     Robinson    v.    Sykes,    23 

5  Vfh  ed.  311.  Beav.  40.    Post,  U  580,  581. 

«  Ralph  V.  Carrick,  5  Ch.  Div.  984 ;  See  also  Hall  v.  Hall,  140  Mass. 

11  Ch.  Div.  873.  267,   where  the   gift  was  to   "issue 

7  Coyl'e    V.    Coylc,    73    N.    J.    Eq.  or    children ' '    and    the    court    held 

528     (a    reluctant    decision     by     a  that    the    word    issue    enlarged    the 

single    judge);    Nice's    Estate,    227  meaning    of    children.      Holmes,    J., 

Pa.    St.    75;    Austin    v.    Bristol,   40  said:     "If  there  had  been  no  chil- 

Conn.    120;    King    v.    Savage,    121  dren,  but  only  grandchildren  of  the 

Mass.  303  (now  overruled  in  Massa-  testator's    daughter,   it   would  have 

chusetts  so  far  as  it  recognizes  the  been    hard    to    persuade    any    court 

rule   of   the   English    cases  that    the  that  there  was  an  intestacy  so   far 

662 


Ch.    XXII]  LIMITATIONS   TO    CLASSES  [§577 

§  576.  When  issue  has  been  held  to  include  all  descendants 
the  question  arises,  does  it  mean  all  descendants  per  capita  or 
does  it  include  only  those  descendants  who  have  no  ancestors 
living  and  who  stand  in  the  place  of  their  ancestors  deceased? 

Introductory:     This  has  somftinies  been  spoken  of  as  the 

question  whetlier  issue  means  issue  per  capita  or  issue  per 
stirpes.  If  issue  means  issue  per  stirpes,  then  it  cannot  include 
any  issue  who  have  an  ancestor  livinpr,  because  so  long:  as  such 
an  ancestor  lives  there  is  no  stirps  for  the  issue  to  represent. 
The  refinements  in  the  solution  of  tlie  (juestion  of  whether  issue 
means  all  the  descendants  prr  capita  ov  only  those  descendants 
who  have  no  ancestor  living,  can  ])est  be  indicated  by  a  con- 
sideration of  the  following  progressive  series  of  cases: 

§  577.  (1)  Suppose  the  gift  is  direct  to  issue  and  not  to 
issue  by  way  of  substitution  after  an  ancestor  deceased  to 
whom  the  gift  was  originally  made:  Thus,  suppose  there  is 
a  bequest  "to  the  issue  of  A"  or  "to  A  for  life,  then  to  A's 
issue."  Assume  that,  at  the  period  of  distribution,  there  were 
two  children  of  A  living  and  each  has  a  child  living.  Do  all 
take  per  capita  each  one-fourth  or  do  the  children  of  A  each 
take  one-half? 

Qearly  if  the  testator  had  actually  put  his  mind  upon  the 
difference  in  result  he  would  have  expressed  himself  clearly 
upon  the  point.  He  would  have  said  per  capita  or  he  would 
have  used  the  expression  per  stirpes  or  some  other  phrase  which 
would  indicate  that  the  issue  were  to  take  only  by  way  of  repre- 
sentation. But  what  is  the  inference  where  he  does  neither? 
It  is  that  his  mind  did  not  work  at  all  upon  the  situation.  He 
did  not  consider  or  view  the  possibilities  of  the  future.  We 
have  a  case  where  the  only  possible  inference  is  that  the  testator 
had  no  intent  about  the  mode  of  distribution  in  the  events  which 
actually  occurred  and  where,  nevertheless,  the  words  used  ac- 
tually furnish  some  solution  of  the  difficulty.  It  is  a  case  where 
it  is  futile  for  the  court  to  guess  from  the  language  used  what 
the  testator  meant  since  it  is  obviously  apparent  that  he  had  no 
meaning.  The  only  possible  function  of  the  court  is  to  adopt 
and  carry  out  a  primary  meaning. 

as   this   clause   was   concerned:    yet       terpretations    proposed     fby    which 
that  would  be  the  result  of  the  in-       issue  was  restricted  to  children]." 

663 


§  577]  FUTURE    INTERESTS  [Cn.    XXII 

What  primary  meaning  then  should  the  courts  adopt  for  the 
word  "issue?" 

So  far  as  the  scope  of  the  language  goes,  issue,  when  it  once 
includes  descendants,  naturally  includes  them  all.  It  cannot  be 
said  that  all  are  included  when  all  that  have  ancestors  living  are 
excluded.  When  an  attempt  is  made  to  give  issue  a  meaning 
which  lets  in  only  those  issue  who  have  ancestors  who  are  de- 
ceased, an  unusual  and  extremely  complex  meaning  to  a  single 
word  is  being  adopted.  The  word  "issue"  is  being  made  to 
stand  elliptically  for  much  more  than  is  contained  in  the  word 
itself.  It  will  usually  be  conceded  as  a  first  principle  in  the  art  of 
construing  written  instruments,  that  when  the  primary  meaning 
of  the  words  used  has  been  determined  and  there  is  no  special 
context  in  the  language  used  upOn  which  a  different  meaning  may 
be  predicated,  the  greater  reasonableness  of  a  different  disposi- 
tion, or  a  consideration  of  what  it  is  likely  a  testator  would  have 
wished,  cannot  be  allowed  to  change  the  interpretation  of  the 
words  used.*^  It  will  equally  be  conceded  that  such  considera- 
tions cannot  be  made  the  basis  for  inserting  words  not  actually 
used.^'^  Courts  are  usually  quick  to  deny  that  their  habit  in 
construing  wills  is  "to  guess  from  the  language  used  in  the 
particular  will  what  the  testator  would  have  meant  had  he  had 
any  meaning,  which  he  had  not."  ^^ 

An  examination  of  the  cases  discloses  an  overwhelming  array 
of  judicial  opinion  that  issue  not  only  includes  descendants,  but 
includes  all  the  descendants  and  that  they  take  per  capita, 
even  though  in  so  doing  they  take  shares  along  with  their  living 
ancestors.^2 

3  See  Holmes,  J.,  in  Hall  v.  Hall,  Brown,  136  N.  Y.   244;   Schmidt  v. 

140  Mass.  267,  270.  Jewett,    195   N.   Y.   486;    Phelps  v. 

10  Bond  V.  Moore,  236  111.  576.  Cameron,    96    N.    Y.    Supp.    1014; 

11  Gray,  Nature  and  Sources  of  Bassett  v.  Wells,  106  N.  Y.  Supp. 
the  Law,  §703.  1068;   Corbett  v.  Laurens,  26  S.  C. 

i2Maddock    v.    Legg,     25    Beav.  Eq.  301;  Ridley  v.  McPherson,  100 

531;    Cook    v.    Cook,    2    Vern.    545;  Tenn.  402. 

Edyvean  v.  Archer  [1903],  A.  C.  In  some  of  the  above  cases  it  was 
379;  Wistar  v.  Scott,  105  Pa.  St.  expressed  that  issue  were  to  take 
200;  Pearee  v.  Rickard,  18  R.  I.  equally  share  and  share  alike.  But, 
142 ;  Weehawken  Ferry  Co.  v.  Sis-  as  has  been  very  justly  held  in  Mas- 
son,  17  N.  J.  Eq.  475;  Price  v.  Sis-  saehusetts,  this  expression  does  not 
son,    13    N.    J.    Eq.    168;    Soper    v.  prevent   the  construction  that  issue 

664 


Ch.    XXII]  LIMITATIONS   TO    CLASSES  [§578 

§  578.     (2)     Suppose  the  gift  is  to  issue  by  way  of  substitu- 
tion in  place  of  a  gift  to  the  ancestor:     Thus,  suppose  llie  gift 
is  "to  A  absolutely,  hut  if  A  dies  before  the  testator's  death  or 
before  the  period  of  distribution,  then  to  A's  issue.    The  English 
cases  hold  that  all  the  issue  take  among  themselves  per  capita, 
and  that  remote  issue  take  though  their  ancestors  are  living.^^ 
No  American  cases  making  any   distinction  between  the  case 
where  the  issue  take  by  way  of  substitution  and  where  they  take 
directly  have  been  found.     It  is  difficult  to  see  how  any  sound 
distinction  can  be  made  upon  this  ground.     What  difference 
is  there  between  a  gift  to  A  for  life  and  then  to  his  issue  and 
to  A  absolutely,  and  if  he  die  after  the  testator  but  before 
the  period  of  distribution,  to  his  issue?     In  both  cases  there 
is  in  reality  a  direct  gift  to  issue.     In  both,  the  issue  take  the 
share  set  apart  for  their  parent  or  for  that  family.     So,  if  the 
gift  is  to  A. absolutely,  but  if  A  die  before  the  testator  to  A's 
issue,  the  case  is  not  in  the  least  altered  so  as  to  furnish  any 
rational  ground  for  saying  that  only  issue  take  who  had  no 
ancestors  living.    There  is  no  logic  in  the  point  that  because  issue 
are  originally  to  take  in  place  of  a  named  ancestor  it  is  expressed 
that  as  among  the  issue  themselves  they  are  always  to  take  by 
representation.     What  is  expressed  is  that  the  issue  shall  take 
the  share  of  a  named  ancestor.    What  is  thus  expressed  does  not 
supply  the  place  of  an  entirely  different  idea,  i.  e.,  that  as  among 
the  issue  only  those  shall  take  who  have  no  ancestor  living— 
which  is   not   expressed.     As   will   be   observed   hereafter,   the 
Massachusetts  cases,  which  exhibit  a  tendency  to  hold  that  issue 
primarily  means  issue  w^ho  have  no  ancestors  living,  make  no 

are  to  take  per  stirpes.     It  is  quite  all  descendants  per  capita. 

proper  to  provide  that  "issue  shall  i3  Davenport   v.   Hanbury,   3   Ves. 

take  equally  share   and  share  alike  Jr.  257;  Freeman  v.  Parsley,  3  Ves. 

per  stirpes,"  thus  causing  the  shares  Jr.  421;   Weldon   v.  Hoyland,  4  De 

to  be  equally  divided  among  differ-  G.   F.  &  J.  564;   Hobgen  v.  Neale, 

ent   stocks   and   also  to   be   divided  11  Eq.  Cas.  48;  In  re  Jones'  Estate, 

equally  among  brothers  and  sisters.  47  L.  J.  Ch.  775 ;   Surridge  v.  Clark- 

Coates  V.   Burton,    191    Mass.    180;  son,  14  W.  R.  979;   Ee  Flower,  55 

Hall  V.  Hall,  140  Mass.  267.    Hence  L.    J.    Ch.   N.    S.    200;    Southam   v. 

the    fact  that   a  similar  expression  Blake,    2    W.    R.    446;    Birdsall    v. 

is  used  does  not  furnish  the  reason  York,  5  Jur.  N.  S.  1237. 
for  the  holding  that  issue  includes 

665 


^  579]  FUTURE    INTERESTS  [CH.    XXII 

dift'erence  at  all  between  the  ease  where  there  is  an  original  gift 
to  issue  and  one  wliere  the  gift  was  by  way  of  substitution.^* 
§  579.  (3)  Suppose  the  gift  is  "to  the  children  of  A  and 
the  issue  of  any  deceased  child":  Here,  of  course,  the  issue 
of  the  deceased  child  will  take  only  the  ancestor's  share.  They 
take  only  in  the  event  that  the  particular  ancestor  who  is  one 
of  the  original  class  is  dead.  It  is,  therefore,  fairly  expressed 
that  they  are  to  take  the  share  which  their  ancestor,  who  was 
a  member  of  the  original  class,  w^ould  have  taken.^-'"' 

But,  as  among  the  issue  themselves  all  descendants  take  per 
capita  the  share  which  the  ancestor,  who  was  a  member  of  the 
class  as  originally  named,  would  have  taken.i^  So  far  as  the  divi- 
sion among  the  issue  themselves  is  concerned,  the  case  is  exactly 
the  same  as  where  the  gift  is  to  A,  B  and  C  and  if  any  one  dies 
before  the  period  of  distribution,  then  to  his  issue,  and  where 
issue  includes  all  descendants  per  capita.^'^ 

The  failure  to  observe  the  distinction  between  the  case  where 
issue  take  per  stirpes  as  between  them  and  the  brothers  and 
sisters  of  the  ancestor  of  the  issue,  and  the  case  where  issue  take 
per  stirpes  among  themselves  the  share  of  the  ancestor,  is  likely 
to  lead  to  confusion.  Thus,  where  the  question  is  whether 
parents  and  their  children  and  grandchildren  are  all  to  share 
equally  per  capita  as  issue,  it  is  sometimes  said  that  the  question 
is  whether  issue  are  to  take  per  capita  or  per  stirpes.  Suppose, 
then,  cases  are  produced  where  the  issue  are  held  to  take  per 
stirpes,  meaning  per  stirpes  as  between  them  and  the  brothers 
and  sisters  of  their  ancestor.  A  court  overlooking  this  and  not 
properly  discriminating,  might  take  it  as  meaning  that  issue  as 
among  themselves  are  to  take  per  stirpes  and  so  might  be  led  to 

14  See  post,  §582.  348;   Lyon  v.  Acker,  3.3  Conn.  222; 

isCongreve   v.    Palmer,    16    Beav.  Risk's  Appeal,  52  Pa.  St.  269;  Fis- 

4.'^5;      Tiniins     v.     Stackhouse,     27  set's  Appeal,  27  Pa.  St.  55;   Lock- 

Beav.    434;    Gowling    v.    Thompson,  hart  v.  Lockhart,  3   Jones  Eq.    (N. 

19  L.  T.  242;  11  Eq.  Cas.  366  note;  C)   205.    Compare,  however,  Pitney 

In   re   Sibley's   Trusts,    5   Ch.    Div.  v.  Brown,  44  111.  363;  McCartney  v. 

494;      In     re     Battersby's     Trusts  Osburn,  118  111.  403. 

[18961   1  Ir.  600;  Hall  v.  Hall,  140  le  Gowling  v.  Thompson,  19  L.  T. 

Mass.   267;    Kilgore  v.  Kilgore,  127  242;   In  re  Sibley's   Trusts,   5    Ch. 

Ind.  276;   Wood   v.   Robertson,   113  Div.     494.       Contra:     Robinson     v. 

Ind.    323;    Crozier    v.    Cundall,    99  Sykes,  21)  Beav.  40. 

Ky.  202;  Gerrish  v.  Hinman,  8  Ore.  ^■^  Ante,  §578,  note  13. 

666 


Ch.    XXII]  LIMITATIONS   TO    CLASSES  [§  581 

promulgate  a  rule  that  wlicu  issue  take  by  way  of  substitution 
the}'  take  per  stirpes  so  that  no  issue  will  take  who  have  an  an- 
eestor  living.  No  instance,  however,  of  a  court  of  last  resort 
doing  this  has  been  found. 

§580.  (4)  Suppose  there  is  a  gift  "to  the  children  of  A  and 
the  issue  of  any  deceased  child,  such  issue  to  take  the  parent's 
share"  or  "to  represent  ajid  take  the  parent's  share":  We 
will  assume  that,  in  accordance  with  a  tendency  in  this  country, 
the  use  of  the  word  "parent"  does  not  cause  the  word  issue  to 
mean  children,'''  The  question  then  arises  whether  descendants 
take  per  capita  or  whether  those  descendants  only  take  who  have 
no  ancestors  living.  Clearly,  the  latter  is  the  correct  view.  The 
very  fact  that  "parent"  does  not  turn  issue  into  children  means 
that  "parent"  does  not  refer  to  the  members  of  the  original 
class  who  are  to  take  and  those  alone,  but  refers  to  whoever 
may  be  a  parent  of  any  issue.  The  word  "parent"  is  thus 
used  in  a  recurring  or  sliding  sense  so  as  to  apply  to  successive 
generations  of  issue.  When  "parent"  is  used  in  this  sen.se,  of 
course,  the  distribution  can  only  be  among  those  descendants 
who  have  no  ancestors  living  and  who  stand  in  the  place  of  their 
ancestors  deceased.'-*  Such  is  the  precise  basis  for  the  holding 
in  a  recent  case  in  Elaine.'-'* 

§  581.  (5)  Suppose  the  grift  is  of  $1,000  "to  A,  and  if  A 
die  before  the  period  of  distribution  then  to  his  issue,  said  issue 
to  take  the  share  of  their  parent"  or  "to  represent  and  take 
the  parent's  share;"  or  suppose  the  g-ift  is  to  A  for  life  and 
then  to  his  issue,  "the  issue  to  take  the  parent's  share"  or  "to 
represent  and  take  the  parent's  share":  The  same  reasoning 
applies  here  as  applies  to  tlie  ease  i)ut  in  the  preceding  section. 
Since  "parent"  does  not  .turn  issue  into  children,  it  must  be 
because  parent  does  not  refer  to  A,  but  is  used  in  a  recurring 
or  sliding  sense,  so  as  to  apply  to  successive  generations  of  issue. 
Hence,  issue  by  the  actual  use  of  the  word  "parent"  includes 
only  those  who  have  no  ancestor  living.  It  should  be  observed 
also  that  the  phrase  "issue  to  take  the  parent's  share"  is  highly 
superfluous  and  useless  if  it  only  means  that  issue  are  to  stand 

18  See  ante,  §  575.  -^  Union   Safe  Deposit   r.  Dudlev, 

19  Ross  V.  Ross,  20  Beav.  645;  In       104  Me.  297. 
re  Orton's  Trust,  3  Eq.  375. 

667 


§  581]  FUTURE    INTERESTS  [Ch.    XXII 

ill  the  place  of  A  because  it  is  otherwise  explicitly  provided  that 
the  issue  shall  stand  in  the  place  of  A  in  any  event.  The  fact 
that  the  word  "parent"  would  be  uselessly  used  in  one  sense  is 
an  ar^niinent  for  its  use  in  another  where  that  adds  something 
to  the  meaning  of  what  lias  gone  before. 

Thus,  in  Dexter  v.  Inches,-^  one-eighth  of  the  residue  was  given 
in  trust  for  the  testator's  son,  Charles,  for  life,  with  a  gift  over 
"if  said  Charles  shall  leave  no  widow  and  shall  leave  issue,  then 
at  his  decease  the  principal  or  capital  sum  shall  be  paid  and 
distributed  equally  to  and  among  the  issue  of  said  Charles." 
The  will  further  provided  that  "in  case  of  the  decease  of  either 
or  any  of  my  children  before  the  receipt  of  his  or  her  share, 
leaving  issue  him  or  her  surviving,  such  issue  shall  represent 
and  take  the  parent's  share."  On  this  language  it  was  held 
that  the  intention  was  expressed  that  only  such  issue  should  ta"ke 
as  had  no  ancestor  living.  The  court  clearly  relied  upon  the  last 
quoted  phrase  containing  the  word  parent.  The  court  also 
referred  to  Ross  v.  Ross  —  and  In  re  Orion's  Trust  ■^^  where  the 
word  "parent"  was  used  in  a  recurring  or  sliding  sense  so  as 
to  apply  to  successive  generations  of  issue.  The  inference  clearly 
is  that,  since  the  word  "parent"  was  not  permitted  to  restrict 
issue  to  children,  ' '  parent ' '  was  used  in  the  recurring  or  sliding 
sense  and,  therefore,  only  such  issue  could  take  as  had  no  an- 
cestor living. 

So  in  Hills  v.  Barnard,^^  the  devise  was  to  the  testator's  son 
of  eight-twelfths  of  the  whole  estate,  then  to  nephews  and  nieces 
living,  "each  individual  nephew  and  niece  to  take  an  equal  share, 
the  issue  of  any  deceased  legatee  to  take  its  parent's  legacy." 
Here  again  it  was  held  that  in  spite  of  the  use  of  the  word 
"parent,"  issue  included  all  descendants.  The  court  then  as- 
sumed without  discussion  that  only  such  descendants  took  as 
had  no  ancestor  living.  The  explanation  is  meager,  but  the 
inference  is  inevitable  that  "parent"  was  taken  in  a  recurring 
or  sliding  sense  and  the  result  reached,  therefore,  followed. 

In  Jackson  v.  Jackson,-^  the  gift  was  to  the  testator's  son's 
wife  for  life  and  at  her  death  to  her  husband  "if  then  living, 

21  147  Mass.   324.  24  152  Mass.  67. 

22  20  Beav,  645.  25  153  Mass.  374. 

23  3  Eq.  375. 

668 


Ch.    XXII]  LIMITATIONS    TO   CLASSES  [§582 

aiid  if  not,  to  her  issue.  And  if  she  should  survive  her  said 
husband  and  should  leave  no  issue,  I  give  this  $10,000  at  her 
death  to  all  my  cliildren  then  living,  and  the  issue  of  any  de- 
ceased child ;  such  issue  to  take  as  by  right  of  representation  the 
sliarcs  of  their  respective  parents."  The  son's  wife  survived 
the  husband  and  died  leaving  children  and  grandchildren  who 
were  children  of  a  living  child,  and  grandchildren  who  were 
children  of  a  deceased  child.  It  was  urged  upon  the  court  -" 
in  favor  of  the  children  that  "parent"  turned  issue  into  chil- 
dren. In  furtherance  of  this  position,  it  was  urged  that  the 
word  "parent"  (jualified  not  only  the  word  issue,  as  used  in 
the  second  sentence  of  the  above  quotation,  but  also  issue  as  used 
in  the  first,  which  was  the  word  "issue"  actually  required  to  be 
construed.  The  court  declared  that  there  was  some  doubt  of 
this  grammatically,  but  then  proceeded  to  assume,  for  the  sake 
of  argument,  that  the  word  "parent"  did  qualify  issue  as  used 
in  the  first  sentence  quoted.  Then  it  declined  to  follow  the 
English  cases  and  declared  that  in  spite  of  the  use  of  the  word 
"parent,"  issue  would  include  all  descendants.  Most  of  the 
opinion  of  the  court  is  taken  up  with  maintaining  this  position. 
If  the  Massachusetts  court  kept  on  assuming  that  parent  quali- 
fied issue,  as  used  in  the  first  sentence,  then  "parent,"  having 
been  held  to  be  used  in  a  recurring  or  sliding  sense,  would  clearly 
require  a  division  among  only  such  issue  as  had  no  ancestors 
living.  If,  however,  the  court  turned  about  and  assumed  that 
"parent"  did  not  apply  to  issue  as  used  in  the  first  sentence, 
then  the  case  is  a  decision  that  issue  primarily  means  all  de- 
scendants who  have  no  ancestor  or  ancestors  living.^"  It  is 
impossible  to  tell  from  the  opinion  whether  the  court  intended 
to  make  such  a  decision. 

§  582.  The  present  state  of  the  cases  in  Massachusetts :  Be- 
fore Jackson  v.  Jackson,-^  it  had  not  been  actually  decided  in 
Massachusetts  that  there  was  to  be  any  departure  from  the  gen- 
eral rule  that  issue  would  be  construed  to  include  9II  descendants 
per  capita  in  the  absence  of  a  special  context  requiring  a  different 
result.     The  cases  where  issue  had  been  held  to  include  only 

28  See    briefs    of    counsel    in    the  -' Ante,  '^  578. 

report   of   Jat'kson   v.   Jackson,   con-  -s  153  Mass.  374. 

tained  in  11  L.  R.  A.  305. 

669 


§  582]  FUTURE    INTERESTS  [CH,    XXII 

descendants  having  no  ancestor  living  were  clearly  explainable 
npon  the  special  context.-^ 

In  Jackson  v.  Jackson-,  however,  the  court  said:  "We  are  of 
the  opinion  that,  when  by  a  will  personal  property  is  given  in 
trust  to  pay  the  income  to  a  person  during  life,  and  on  the  death 
of  such  person  to  pay  the  principal  sum  to  his  issue  then  living, 
it  is  to  be  presumed  that  the  intention  was  that  the  issue  should 
include  all  lineal  descendants,  and  that  they  should  take  per 
stirpes,  unless  from  some  other  language  of  the  will  a  contrary 
intention  appears."  It  is  ditScult  to  tell,  as  indicated  in  the 
preceding  paragraph,  whether  this  is  a  dictum  merely  or  an 
actual  decision.  The  subsequent  Massachusetts  cases  still  leave 
the  position  of  the  Massachusetts  court  in  doubt. 

Thus,  in  Gardiner  v.  Savage,^^  the  testator  left  the  residue  of 
his  property  to  trustees  to  divide  .the  income  between  a  son  and 
a  daughter  "for  their  sole  and  individual  benefit  and  use,  and 
at  their  decease,  should  they  leave  issue,  to  descend  in  fee  to  such 
issue."  The  daughter  died  leaving  children  and  grandchildren. 
It  was  held  that  the  daughter  took  a  life  interest  in  one-half  the 
property,  which  at  her  death  passed  to  her  issue  per  stirpes. 
It  is  not  made  clear  whether  the  grandchildren  of  the  daughter 
were  children  of  living  children  or  deceased  children. 

In  Coates  v.  Burton, ^^  the  testator  provided:  "Upon  the 
decease  of  each  of  my  said  daughters,  Caroline  or  Sarah,  after 
the  decease  of  my  wife,  my  trustees  hereunder  shall  pay  over  a 
proportion  of  the  principal  of  the  said  fund  of  fifty  thousand 
dollars  and  said  estate  on  Fort  avenue,  then  in  trust  hereunder 
for  their  benefit  equal  to  the  proportion  of  the  income  thereof, 
which  such  daughter  so  dying  shall  at  her  decease  be  entitled  to 
receive,  to  her  lakcful  issue,  share  and  share  alike,  and  in  case 
of  either  or  both  dying  without  such  issue  living  at  her  decease, 
then  to  my  then  heirs-at-law  in  either  and  all  cases  to  have  and 
to  hold  to  them,  their  heirs  and  assigns,  to  their  own  use  and 
behoof  forever."  The  daughter,  Sarah,  died  leaving  as  her 
issue  seven  children  and  a  grandchild,  the  daughter  of  one  of 
these  living  children.    It  was  held  that  the  grandchild  would  not 

29  See    explanation    of    Dexter    v.  3°  182  Masa.  521. 

Inches,  147  Mass.  324;  Hills  v.  Bar-  si  191   Mass.   180. 

nard,  152  Mass.  67  and  Jackson  v. 
Jackson,  153  Mass.  374,  ante,  §  581. 

670 


Cll.    XXllJ  UJHITATIONS   TO    CLASSES  H  588 

share.  Jackson  v.  Jackson  '■''■^  was  ic-teircd  lo  as  establishiug  the 
rule  that  issue  primarily  included  ouly  such  desceudauts  as  had 
no  ancestors  living.  In  addition  to  this,  however,  the  court 
found  from  the  whole  will,  which  is  not  given,  four  paragraphs 
indicating  a  scheme  that  issue  should  take  by  right  of  representa- 
tion. In  two  paragraphs  it  was  expressly  declared  that  issue 
were  to  take  by  representation. 

It  is  very  difficult,  therefore,  to  say  just  how  far  the  Massa- 
chusetts cases  have  gone.  Suppose,  for  instance,  there  came 
before  the  Massachusetts  court  in  its  simplest  form  a  gift  "to 
A  absolutely,  but  if  A  die  before  the  period  of  distribution  then 
to  A's  issue."  It  is  submitted  that  it  is  quite  impossible  to 
predict  what  the  court  would  do. 

One  thing,  however,  seems  clear.  The  Massachusetts  court 
does  not  attempt  to  draw  any  distinction  between  the  case  of  a 
gift  "to  A  for  life,  then  to  A's  issue"  and  the  case  of  a  gift 
"to  A  absolutely,  but,  if  A  die  belore  the  period  of  distribution, 
to  A's  issue.". 

§  583.  What  is  meant  by  the  statement  that  ' '  where  the 
gift  to  the  issue  is  substitutional  they  take  per  stirpes  and  not 
per  capita":  In  Pearce  v.  Kickard,^^  the  limitations  were  to 
A  for  life,  and  then  to  the  issue  of  A  alive  at  her  death.  It  was 
held  that  issue  meant  all  descendants  and  that  all  took  per 
capita,  including  those  who  had  ancestors  living.  The  court, 
however,  said:  "It  is  doubtless  true  that  where  the  gift  to  the 
issue  is  substitutional,  they  take  per  stirpes  and  not  per  capita. 
That  is  to  say,  where  issue  are  pointed  out  in  the  will  to  take 
with  reference  to  the  share  of  the  parent,  they  take  by  way  of 
substitution."  Thus,  the  court  seems  to  say  that  if  it  is  ex- 
pressed that  "issue  shall  take  the  parent's  share,"  using  the  word 
"parent,"  then  the  issue  may  take  as  among  themselves  per 
stirpes,  or  as  between  themselves  and  the  brothers  and  sisters 
of  their  ancestor  only  the  ancestor's  share.  This  meaning  to 
the  language  of  the  court  is  confirmed  by  the  two  cases  cited: 
In  Minchell  v.  Lee,^*  there  was  a  gift  to  all  the  children  of  A 
living  at  A's  death,  except  B,  and  amongst  the  issue  of  any 
children  of  A  as  should  be  then  dead,  and  also  among  the  issue 
of  B,  such  issue  taking  their  respective  parent's  share.     It  was 

32  153  Mass.  374.  S4  17  Jur.  727. 

as  18  R.  I.  142. 

671 


§  583]  FUTURE    INTERESTS  [Ch.    XXII 

held  that  the  issue  of  B  as  against  the  children  of  A,  except  B, 
took  per  stirpes  and  not  per  capita.  This  was  clear  from  the 
phrase  "such  issue  [referring  to  the  issue  of  B]  taking  their 
respective  parent's  share."  The  second  case  cited  was  Dexter  v. 
Inches.'^''  Here,  as  we  have  already  observed, ^"^  it  was  held  that 
in  the  phrase,  "such  issue  shall  represent  and  take  the  parent's 
share,"  the  word  "parent"  was  used  in  a  recurring  or  sliding 
sense  and  that,  therefore,  only  such  issue  could  take  as  had  no 
ancestors  living.  The  statement  in  Pearce  v.  Richard,  as  literally 
expressed  and  as  explained  by  the  two  cases  cited,  is  beyond 
criticism.  Clearly,  however,  it  furnishes  no  ground  for  a  hold- 
ing that  when  the  gift  is  "  to  A  absolutely,  but  if  A  dies  before 
the  testator's  death  or  before  the  period  of  distribution,  then  to 
A's  issue"  or  "to  the  children  of  A  and  the  issue  of  any  de- 
ceased child,"  only  such  issue  can  take  as  among  themselves  as 
have  no  ancestors  living. 

In  Ridley  v.  McPherson,^''  the  limitations  were  again  almost 
identical  with  those  in  Pearce  v.  Richard.  They  were  to  A  for 
life,  then  to  the  issue  of  the  life  tenant  living  at  her  death.  It 
was  held  that  issue  included  all  the  descendants  per  capita,  even 
though  some  had  ancestors  living.  The  court,  however,  in  sum- 
marizing the  holding  in  Pearce  v.  Richard,  said  that  the  issue 
might  take  per  stirpes  if  they  took  in  a  representative  or  sub- 
stitutionary manner.  The  Tennessee  court  said:  "The  gifts, 
in  this  case,  to  the  issue  of  the  life  tenant  cannot  be  considered 
as  substitutional,  so  that  such  issue  must  take  per  stirpes.  A 
gift  to  issue  is  substitutional  when  the  share  which  the  issue  are 
to  take  is,  by  a  prior  clause,  given  to  the  parent  of  such  issue, 
but  it  is  an  original  gift  when  not  so  expressed  to  be  given  to 
the  parent  of  such  issue,  and  the  gift  in  this  case  falls  under 
the  latter  head  or  class."  This  language  is  taken  from  the 
American  and  English  Encyclopedia  of  Law"'^  The  cases,  how- 
ever, cited  in  support  of  the  passage  in  the  encyclopedia,  so  far 
as  they  in  any  way  relate  to  the  question  under  discussion,  sup- 
port the  proposition  that  when  the  gift  is  to  "the  children  of  A 
and  the  issue  of  any  deceased  child,"  the  issue  as  between  them 
and  the  living  children  of  A  take  per  stirpes.     The  only  case 

35  147  Mass.  .324.  a"  100  Tenn.  402. 

^fiAnte,  §581.  38  Vol.  II,  1st  ed.  871,  note. 

672 


ClI.    XXI  I  J  LIMITATIONS    TO    CLASSKS  [§  ^"'^-4 

cited  in  the  encyclopedia  which  involves  the  (jut'stion  as  to  how 
the  issue  take  as  amongst  themselves  is  Dexter  v.  Inches.'^'* 
Hence,  the  only  inference  that  we  can  draw  from  the  language 
of  the  Tennessee  case  is  that  when  the  gift  is  "to  the  children 
of  A  and  the  issue  of  any  deceased  child,"  the  issue  of  a  de- 
ceased child  take  as  between  themselves  and  the  children  of  A 
per  stirpes;  also  that  where,  as  in  Dexter  v.  Inches,  the  gift  is 
"to  A  for  life  and  then  to  his  issue,  the  issue  to  represent  and 
take  the  parent's  share,"  only  such  issue  will  take,  as  among 
themselves,  as  have  no  ancestors  living.  Both  propositions  are 
clearly  correct.  No  inference  is  to  be  drawn,  therefore,  from 
Ridley  v.  McPherson  that,  where  the  gift  is  "to  the  children  of 
A  and  the  issue  of  a  deceased  child"  or  "to  A  absolutely,  but 
if  A  dies  before  the  period  of  distribution,  then  to  A's  issue," 
only  such  issue  will  take,  as  among  themselves,  as  have  no  an- 
cestors living. 

TITLE  VII. 

ADOPTED    CHILDREN  4o_HOW    FAR    INCLUDED    IN    GIFTS    TO 

"HEIRS,"  "ISSUE,"  OR  "CHILDREN"  OF  THE 

ADOPTING   PARENT. 

§  584.  Problem  stated  and  principles  to  be  applied:  If  it 
is  clear  from  the  special  context  and  admissible  extrinsic  evi- 
dence that  the  testator  or  settlor  actually  meant  by  the  use  of 
the  word  "heirs,"  "children"  or  "issue"  to  include  an  adopted 
person,  then  such  adopted  person  will  be  included.  It  makes  no 
difference,  where  the  word  "children"  is  used,  that  the  adopted 
person  is  not  given  by  the  adoption  statute  the  legal  status  of  a 
child. •♦'  Nor  is  it  material  whether  the  instrument  which  refers 
to  the  children  of  a  designated  person  is  executed  by  the  adopt- 
ing parent  ^■-  or  ])y  a  third  person. •*••  On  the  other  hand,  the 
special  context  and  extrinsic  evidence  may  show  a  clear  ex- 
pressed intention  that  "heirs,"  "children"  or  "issue"  are  used 
in  the  sense  of  "heirs,"  "issue"  or  "children"  by  birth  alone. 

30  147  Mass.  324.  *^  Martin  r.  Aetna  Life  Ins.   Co., 

40  As  to  how  far  iUcgitimate  01^1-  73  Me.  25. 

dren   may   be    included    in   a   devise  *'-  Id. 

to  the  children  of  a  named  person,  *^  In  re  Truman.  27  R.  T.  209. 
see  ante,  §  140. 

Kules  Kut.  Int. — 43  573 


§  584]  FUTURE    INTERESTS  [Ch.    XXII 

The  adopted  person  must,  therefore,  be  excluded,  though  the 
adoption  act  gives  the  person  adopted  the  status  of  "heir," 
"children"  or  "issue,"  as  the  ease  may  be."*^ 

The  ease  whicli  presents  peculiar  difficulties  is  where  there  is 
no  special  context,  and  no  surrounding  circumstances  exist, 
which  warrant  the  inference  that  the  testator  or  settlor  had  a 
real  and  actual  intention  concerning  the  inclusion  or  exclusion 
of  the  adopted  child.  The  typical  case  of  this  sort  is  where  the 
"heirs,"  "children"  or  "issue"  referred  to  are  to  be  ascertained 
at  a  distant  future  time,  frequently  after  the  testator's  death, 
and  there  has  been  no  adoption  of  any  child  who  could  claim 
to  be  within  the  class  and  no  act  of  adoption  has  been  thought  of 
or  considered  at  the  time  of  the  execution  of  the  will,  settlement, 
or  insurance  policy.  In  this  class  of  cases  the  only  legitimate 
inference  from  the  context  and  surrounding  circumstances  is 
that  the  testator  or  settlor  has  no  actual  intention  whatever  in 
respect  to  the  difficulty  which  afterwards  arises  bj'^  the  appear- 
ance of  an  adopted  child.  The  very  fact  that  the  difficulty  has 
arisen  is  often  the  clearest  proof  that  the  testator  or  settlor 
never  thought  of  the  matter  at  all,  for  if  he  had,  it  is  hardly 

i*  In  Eeinders  v.  Koppelman,  94  thought  it  was  annulled.  This  cir- 
Mo.  338,  there  was  a  devise  to  the  cumstance  the  court  held  to  be  suffi- 
testator's  wife  for  life,  then  one-  cient  to  show  an  actual  intention 
half  to  the  testator 's  adopted  daugh-  that  the  adopted  child  was  not  in- 
ter A,  and  "one-half  to  the  near-  eluded  in  the  term  "heirs  at  law," 
est  and  lawful  heirs  of  himself  and  In  Balch  v.  Johnson,  106  Tenn. 
wife."  This  will  showed  a  plan  to  249,  a  deed  Avas  executed  convey- 
provide  one-half  for  an  adopted  ing  the  property  to  A  for  life,  and 
daughter  and  the  other  half  to  heirs  at  her  death  to  the  "bodily  heirs" 
by  blood,  and  the  word  "nearest"  of  A's  husband,  including  Ellen 
bore  out  this  view.  Hence  even  a  Evers,  a  stepdaughter  of  Andrew 
subsequently  adopted  child  was  not  Johnson,  Jr.,  the  son  of  the  life 
included  in  the  word  "heirs."  tenant.    It  was  held  that  an  adopted 

In  Morrison  v.  Session's  Estate,  child  upon  whom  the  statute  con- 
70  Mich.  297,  the  testator  made  his  f erred  "all  the  privileges  of  a  legi- 
will  in  1879,  leaving  the  residue  of  mate  child,"  "with  capacity  to  in- 
his  estate  "to  his  lawful  heirs."  herit  and  succeed,"  was  not  in- 
At  that  time  he  had  an  adopted  eluded  in  "bodily  heirs."  Clearly 
child,  but  in  1874  he  had  attempted  this  was  justified  by  the  special  con- 
to  secure  the  revocation  of  the  text,  "bodily  heirs. " 
adoption  decree,  and  the  probate  See  also  Clarkson  v.  Hatton,  143 
judge  had  in  fact  ordered  the  adop-  Mo.  47,  and  the  cases  dealt  with, 
tion     annulled,     and     the     testator  post,  §  5^2. 

674 


Ch.    XXII]  LIMITATIONS   TO   CLASSES  [§585 

possible  that  he  would  not  have  expressed  his  desires  in  the 
clearest  terms. 

In  this  class  of  cases  where  the  testator  has  no  real  intention, 
the  person  adopted  has  two  steps  to  take :  First,  he  must  show 
that  by  the  adoption  ad  he  was  given  the  status  of  an  "heir,"  or 
"chikr'  or  "issue"  by  birth  of  the  adoptiiif;  parent,  as  the  case 
may  be  That  is  a  matter  entirely  of  the  construction  of  the 
(tfJoptioii  act.  Second,  he  must  then  show  that  the  word  "heirs," 
"children"  or  "issue"  as  used  in  the  instrument  in  question, 
was  in  its  j)riiiiary  meaning:  so  comprehensive  as  to  include  any 
one  who  obtained  the  legal  status  called  for,  no  matter  by  what 
means.  This  is  entirely  a  question  of  the  interpretation  of  the 
instrument.  It  is  not,  however,  a  question  of  the  actual  inten- 
tion of  the  testator  or  settlor,  for  we  have  premised  that  he  had 
none.  It  is  really  a  question  of  what  intention  the  law  will 
charge  him  with.  That  depends  upon  what  primary  meaning  the 
law  will  give  to  the  language  used.  Once  ascertained,  that  must 
be  adhered  to  so  long  as  the  case  continues  to  be  one  where  the 
testator  or  settlor  had  no  real  intention. 

§  585.  Analysis  of  the  cases  with  reference  to  whether  the 
adoption  act  can  be  construed  to  give  the  adopted  person  the 
status  of  an  "heir,"  "child"  or  "issue":  In  a  number  of 
states  the  adoption  act  has  been  so  limited  in  scope  that  it  gave 
to  the  person  adopted  the  status  of  an  "heir"  only  and  denied 
to  him  the  status  of  a  child  by  birth.  Thus  in  Russell  v.  Rus- 
sell 4^  it  was  held  that  a  person  adopted  could  not  take  as  coming 
within  the  meaning  of  "children"  in  the  will  of  the  adopter. 
This  was  placed  solely  upon  the  ground  that  the  statute  permit- 
ting the  adoption  by  a  declaration  in  writing  had  only  the  effect 
"to  make  such  child  capa])le  of  inheriting."  In  Commonwealth 
I'.  Nancrede  **'  the  adopted  person  was  held  not  to  come  within 
the  exemption  given  to  a  child  under  the  inheritance  tax  law. 
In  Schafer  v.  Eneu  *'  the  adopted  person  did  not  come  within 
the  meaning  of  "child"  in  a  will.  The  last  two  cases  went 
frankly  upon  the  ground  that  the  adoption  statute  was  so  narrow 
in  scope  that  it  gave  only  the  right  of  inheritance  and  did  not 
undertake  to  confer  upon  the  person  adopted  the  status  of  a 

■»5  84  Ala.  48.  *'  54   Pa.  St.  304. 

*«  32  Pa.  St.  389. 

675 


§  585]  FUTURE    INTERESTS  [Ch.    XXII 

child  by  birth.  The  opinions  of  the  Pennsylvania  court  in  both 
cases,  so  far  as  they  assert  that  an  adopted  child  is  not  a  child, 
must  be  read  in  the  light  of  such  a  statute.  They  are  entirely 
out  of  place  and  useless  as  authorities  where  the  adoption  act  is 
broad  enough  to  give  the  adopted  person  the  status  of  a  child  by 
birth.  In  Cochran  v.  Cochran  **  a  testator  gave  a  portion  to  one 
of  his  sons  for  life,  and  "if  he  dies  without  lawful  children," 
then  over  to  two  grandchildren  named.  This  will  was  executed 
in  1895  while  a  general  adoption  act  was  in  force  in  Texas. 
Between  1901  and  1903  the  son  adopted  a  child  under  the  law 
of  Texas,  and  died  leaving  the  adopted  child  surviving.  It  was 
held  that  the  gift  over  took  effect.  This  result  proceeded  solely 
on  the  ground  that  the  Texas  statute  in  force  at  the  time  of  the 
adoption  did  not  make  the  person  adopted  a  "child"  at  all,  but 
only  an  "heir."  The  Texas  statute*^  provides  that  the  party 
so  adopted  "shall  have  the  rights  and  privileges,  both  in  law 
and  equity,  of  a  legal  heir  of  the  party  so  adopting  him."  All 
through  the  statute  the  person  adopted  is  spoken  of  as  the  "legal 
heir" — never  even  as  a  "child. "^^ 

Section  5  of  the  Illinois  act  of  1874  provides,  however,  that 
"A  child  so  adopted  shall  be  deemed,  for  the  purpose  of  inherit- 
ance by  such  child,  and  his  descendants  and  husband  or  wife, 
and  other  legal  consequences  and  incidents  of  the  natural  rela- 
tion of  parents  and  children,  the  child  of  the  parents  by  adop- 
tion, the  same  as  if  he  had  been  born  to  them  in  lawful  wedlock." 
This  act  in  common  with  many  other  adoption  statutes,  gives 
the  adopted  person  the  status  of  an  heir.^i     The  Massachusetts 

48  43  Tex.  Civ,  App.  259.  more   than  allow   the   adoption,  and 

4»Sayles'   Tex.    Civ.    Stats.    1898,  said  nothing   as  to  whether  it  was 

p.  2.  to   constitute   the    adopted   party  a 

50  It  is  the  doctrine  of  the  Texas  child  of  the  adopters  or  what  rela- 

Supreme    Court,    as    announced    in  tion  she  was  to  bear  toward  them. ' ' 
Eckford  v.  Knox,  67  Tex.  200,  204,  Observe    also    that    the    Missouri 

that   the    Texas    Statute    "gives   to  Adoption   Act  involved   in   Clarkson 

the  adopted  party  the  position  of  a  v.    Hatton,    143    Mo.    47,    was    so 

child,  only  so  far  as  to  make  him  the  meager    that    it    did    not   give    the 

heir   of    his   adopter,   but    does    not  person     adopted    the     status    of    a 

constitute    him    a    member    of    the  "child." 

latter 's  family,  with  such  duties  and  si  Butterfield   v.    Sawyer,    187   111. 

privileges    as    that    relation    would  598;    Johnson's  Appeal,   88   Pa.  St. 

imply.     ♦     *     *     The  statute  did  no  346.      See   also   McGunnigle    v.  Me- 

676 


Ch.    XXI  I J  LIMITATIONS   TO    CLASSES  U  585 

act,  from  whicli  section  5  of  the  Illinois  act  of  1874  is  taken,  the 
Rhode  Island  act,  also  copied  from  the  Massachusetts  act,  and 
the  Indiana  statute,  have  all  been  held  to  give  the  adopted 
person  the  status  of  a  child  by  birth  or  issue  of  the  adopting 
parent. •'^^     The  same  effect  must  be  given  to  the  Illinois  act. 

It  is  true  that  in  \S'aUa<^e  v.  Noland''''  ''children"  was  held 
not  to  include  an  adopted  child.  Hut  this  went  upon  the  ground 
that  by  the  proper  construction  of  the  word  "children"  as  used, 
it  referred  only  to  such  as  could  have  ac(iuired  the  legal  status 
of  a  child  when  the  will  was  executed.  At  that  time  there  was 
no  general  adoption  act  in  force.  Hence  the  children  adopted 
were  not  included. 

There  are,  howevei-,  some  general  expressions  in  the  Noland 
case  not  at  all  necessary  to  the  decision,  to  the  effect  that  "in 
other  respects  than  the  right  of  inheriting  from  the  adopting 
parent  the  adopted  cliiUl  is  unlike  children  by  birth."  This 
obviously  means  "in  so}nr  other  respects  than  the  right  of  in- 
heriting from  the  adopting  parent,"  and  the  court  cites  the 
holding  that  the  adopted  child  cannot  inherit  from  the  ancestors 
or  collaterals  of  the  adopting  parent.  This,  however,  is  only 
because  by  the  proper  construction  of  our  statute  this  right  of 
inheritance  is  expressly  excepted.  The  fact  is  that  in  all  other 
respects  not  expressly  excepted  the  adopted  child  acquires  the 
status  of  a  child  of  the  parent  as  if  born  in  lawful  wedlock,  and 
the  Illinois  statute  on  adoption  so  declares  in  the  most  compre- 
hensive language.  Again  the  court,  in  Wallaee  v.  Noland, 
said:  "It  has  been  said  in  a  number  of  cases  that  an  adopted 
child  is  regarded,  in  law,  as  a  child  onlj'  for  the  purpose  of 
inheritance  from  the  adopting  parent."  For  this  is  cited  prin- 
cipally the  cases  of  Schafer  v.  Eneu^'^  and  Commomvealth  v. 
Nancrcde/'''      These   cases   support   the    passage    quoted.      The 

Kee,  77  Pa.  St.  81,  where  legitiinat-  iiiotlior   shall   occupy  the  same  posi- 

ing  statute  gave  a  bastard  the  status  tion    toward   such   child   that    he   or 

of  an  heir.  she  would  if  the  natural  father  or 

32  Sewall    V.    Koberts,    115    Mass.  mother,  and  be  liable  for  the  main- 

262;    Tirrell    i'.    Bacon,    .'5    Fed.    62  tenance,   education   and   every   other 

(U.    S.    Cir.    Ct.,    Mass.)  ;    Ilartwell  way  responsible  as  a  natural  father 

V.  Tefft,  19  R.  I.  644;  Bray  r.  Miles,  or  mother")- 
23  Ind.  App.  432   (Indiana  act  pro-  s'' 246  111.  535. 

vided   that   "after   the   adoption   of  5454  Pa.   St.   304. 

such   child,   such   adopted  father   or  f^s  32  Pa.  St.  389. 

677 


§  586]  FUTURE    INTERESTS  [CH.    XXII 

trouble  with  their  use  in  the  state  of  Illinois  is  that  the  state- 
ment made  in  them  and  quoted  b.y  the  court  was  founded  upon 
the  fact  that  the  Pennsylvania  statute  was  so  narrow  in  scope 
that  it  only  made  the  person  adopted  the  legal  heir  by  adoption 
and  did  not  undertake  to  give  the  person  adopted  the  status  of 
a  child. 

§  586.  Analysis  of  the  cases  with  reference  to  whether  the 
language  of  a  will,  settlement  or  insurance  policy  is  to  be  inter- 
preted as  including  all  persons  who  acquire  the  status  of 
"heirs,"  "children"  or  "issue,"  no  matter  in  what  manner — 
(a)  The  construction  given  to  the  word  "heirs":  There 
seems  to  be  a  general  agreement  that  when  the  word  "heirs" 
is  used  in  a  will  devising  to  the  "heirs"  of  any  person,  the  word 
is  used  to  describe  not  merely  heirs  by  blood,  but  whoever 
acquires  the  status  of  an  heir  according  to  law.  Hence,  an 
adopted  child  is  included  whether  the  word  be  used  in  a  will  or 
settlement  of  an  adopting  parent  or  of  a  third  person.-''*'  The 
word  "heirs"  also  is  regularly  held  to  refer  to  those  who  have 
acquired  the  status  of  heir  at  the  time  when  the  class  is  deter- 
mined— for  instance,  usually  at  the  death  of  the  ancestor.  Hence 
the  fact  that  when  the  will  or  settlement  was  executed  and  took 
effect  there  was  no  adoption  act  in  force,  did  not  prevent  a 
person  subsequently  adopted  and  acquiring  the  status  of  an  heir 
from  being  included.^''' 

§  587.  (b)  As  to  the  construction  of  the  words  "children" 
or  "issue"  ^5^  in  a  will,  settlement  or  insurance  policy — The 
words  "children"  or  "issue"  in  a  will,  settlement  or  insur- 
ance policy  executed  when  a  general  adoption  act  was  in  force 
and  by.  or  procured  by,  the  adopting  parent,  primarily  and  in 
the  absence  of  a  special  context  to  the  contrary,  includes  a  per- 
son who  obtained  by  adoption  the  status  of  a  child:  When 
the  adopting  parent,  while  a  general  adoption  act  is  in  force, 
but  long  before  any  adoption  is  thought  of,  procures  an  insur- 
ance policy  for  the  benefit  of  his  children,  or  makes  a  will,  or 
executes  a  settlement  in  favor  of  his  children,  the  word  "chil- 

5c  Butterfield   v.   Sawyer,   187   111.  •'"-s  In  Virgin   v.  Marwick,   97   Me. 

598;  McGiinnigle  v.  MeKpe,  77  Pa.  578,    it    was    intimated    that    "the 

St.    81;    Johnson's   Appeal,   88   Pa.  term  child  has  a  broader  significance 

St.  346.  than  issue." 

57  7d. 

678 


Ch.    XXII]  LIMITATIONS   TO   CLASSES  [§588 

dreii"  is  regularly  taken  as  referring  primarily  to  those  who 
aequire  that  status  at  any  time  in  the  future  before  the  class  is 
determined,  lleuee  a  subsequent  adoption  which  confers  the 
status  of  a  child  upon  the  person  adopted  operates  to  include  the 
adopted  person  as  a  l)enefieiary  under  the  insurance  policy  or 
the  will/"'" 

^588.  The  words  "children"  or  "issue"  in  a  will,  settle- 
ment or  insurance  policy  executed  while  a  g-eneral  adoption  act 
was  in  force,  and  even  though  the  same  be  executed  or  pro- 
cured by  one  other  than  the  adopting  parent,  primarily  and  in 
the  absence  of  a  special  context  to  the  contrary,  includes  a 
person  who  obtains  by  adoption  the  legal  status  of  a  "child" 
or  "issue":  The  case  where  the  word  "children"  or  "issue" 
is  used  in  the  will  or  settlement  of  a  person  other  than  the  adopt- 
ing parent  does  not  really  present  a  different  case  from  that  of 
the  preceding  paragraph,  where  the  insurance  was  procured  by 
the  adopting  parent  in  favor  of  children  generally  at  a  time 
long  before  the  insured  had  any  idea  of  adopting  a  child.  In 
both  cases  alike  the  mind  pf  the  adopting  parent  and  the  stranger 
is  in  the  same  state.  In  both  the  word  "children"  is  used  to 
include  a  class  and  to  include  all  who  secure  the  legal  status  of 
children.  If,  when  the  adopting  parent  uses  the  word  long 
before  he  has  any  adoption  in  mind,  he  is  held  to  include  all  who 
acquire  the  status  even  though  it  be.  by  adoption,  then  logically 
the  stranger  should  be  held  to  the  same  use  of  the  same  word. 
To  this  a  very  respectable  line  of  authorities  agree. 


60 


50  Virgin  v.  Marwick,  97  Me.  578;  262;  Tirrell  v.  Bacon,  3  Fed.  62  (U. 
Von  Beck  v.  Thomson,  44  App.  Div.  S.  Cir.  Ct.  of  Mass.) ;  Hartwell  v. 
N.  Y.  37.3  (affirmed,  167  N.  Y.  601).  Tefft,  19  R  I.  644;  Bray  v.  Miles, 
In  Russeir  v.  Russell,  84  Ala.  48,  23  Ind.  App.  432.  It  is  no  doubt 
the  adopted  child  was  not  included.  true  that  Sowall  v.  Roberts,  supra. 
But  this  was  placed  solely  upon  is  a  case  where  the  property  of 
the  ground  that  the  Alabama  stat-  the  adopting  parent  was  settled 
ute  gave  to  the  person  adopted  only  upon  himself  for  life  and  then  to 
the  status  of  an  heir  and  not  the  his  children.  Nevertheless,  the 
status  of  a  child.  The  dictum  of  actual  words  of  the  settlement  used 
the  court  is  clear  that  if  the  statute  are  not  those  of  the  adopting  par- 
had  given  to  the  person  adopted  the  ent.  For  some  reason  he  did  not 
status  of  a  child  he  would  have  been  himself  have  anything  to  do  with 
included  in  the  word  "child"  as  the  settlement.  It  was  done  for 
used  in  the  adopting  parent's  will.  him   by   trustees.      The   only   reason 

CO  Sewall    V.    Roberts.    1^'^    Mass.  the  ease  is  one  of  a  settlement  of 

679 


§  589]  FUTURE    INTERESTS  [Cli.    XXll 

§  589.  The  proposition  of  ^  588  is  not  controverted  by  the 
exception  in  the  adoption  act  providing  that  the  adopted 
child  "shall  not  take  property  expressly  limited  to  the  heirs 
of  the  body  or  bodies  of  the  parents  by  adoption": '-i  This 
exception  covers  the  case  where  the  adopting  parents,  or  one  of 
them,  would  by  the  common  law,  take  an  estate  tail.  The 
^lassachusetts  and  Rhode  Island  decisions  have  both  declared 
that  the  exception  in  the  adoption  act  is  contined  strictly  to  a 
limitation  to  "heirs  of  the  body  or  bodies"  of  the  parents  by 
adoption ;  that  these  words  have  a  technical  meaning  and  that 
the  exception  does  not  cover  a  limitation  to  the  issue  or  children 
of  the  adopting  parents.*'- 

§  590.  The  proposition  of  §  588,  so  far  from  being  contro- 
verted, is  rather  strengthened  by  the  Massachusetts  act  of  1876, 
which  expressly  excludes  the  adopted  child  from  taking  under 
the  designation  of  "children"  in  the  will  or  settlement  of  one 
other  than  the  adopting  parent,  unless  there  is  an  express  in- 
tention that  such  child  shall  be  included:  In  Wyeth  v.  Stone  '"'•" 
the  testator  devised  the  residue  of  his  estate  to  his  adopted 
daughter  E,  but  if  the  said  E  shall  die  without  issue  before  the 
decease  of  my  said  wife,  then  I  give,  bequeath  and  devise  said 
remainder  "to  the  heirs  at  law  of  my  said  wife."  E  died 
without  issue.  The  testator's  widow  subsequently  died  having 
had   no   children  by  birth,   but  having   adopted   H,   who   sur- 

his   own    property    upon    himself    is  than     the    adopting     parent.       This 

that  in  equity  the  subject-matter  of  statute  was  passed  in  view  of  what 

the  settlement  belonged  to  him.    The  was    regarded    as    the    holding    in 

adopting  parent  was  himself  entirely  Sewall    v.    Eoberts,    and,    therefore, 

divorced  from   any  connection   with  shows    the    authoritative    acceptance 

the   language   actually  employed   in  of  Sewall  v.  Eoberts,  as  a  case  an- 

the  settlement.     In  the  other  cases,  nouncing    a    rule    where    the    settle- 

supra,  Sewall  v.  Eoberts,  is  treated  ment  was  made  by   one  other   than 

as  a  direct   authority   for  the  case  the  adopting  parent, 

where    the    will    or    settlement    was  «i  See     Supplement    to    the    Gen. 

made  by  one  other  than  the  adopt-  Stats,   of   Mass.,  Vol.    1,   1860-1872, 

ing    parent     and    subsequently    the  eh.  .'510. 

legislatui-e  of  Massachusetts  amend-  «-  Sewall    v.    Eoberts,    115    Mass. 
ed     the     adoption     act     so     as     to  262;    Tirrell   v.   Bacon,    3    Fed.    62 
j^rovide    in    terms    what    should    be  (U.    S.    Cir.    Ct.    of    Mass.)  ;    Hart- 
done  where  the  word  ' ' heirs, "  "is-  well  v.  Tefft,  19  E.  I.  644. 
sue"    or    "children"    was    used    in  cs  144  Mass.  441. 
the  will  or  settlement  of  one  other 

680 


ClI.    XXII]  LIMITATIONS    TO    CLASSES  U'^-'l 

vived  her.  The  court  seems  to  admit  that  under  the  Massa- 
chusetts act  as  it  stood  in  1871  and  prior  to  1876,  and  in  view 
of  the  case  of  Sewall  v.  Roberts  ''*  the  adopted  child  II  would 
have  taken.  The  result  reached  aj^ainst  the  adopted  child  in 
Wijcfh  V.  t<tone  was  due  wholly  to  the  amendment  of  1876. 
There  never  has  been  added  to  the  Illinois  act  what  was  added 
to  the  Massachusetts  act  b3'  the  am/Cndment  of  1876.  Therefore, 
the  Illinois  act  stands  as  the  Massachusetts  act  stood  before  1876, 
and  the  case  of  Wi/eth  v.  Stonr,  therefore,  has  no  application 
in  Illinois  exeei)t  to  ]n-ove  that  a])art  from  the  special  statutory 
provision  which  does  not  exist,  the  adoj)ted  child  must  be  in- 
cluded. In  Blodgett  v.  Stowell  "'•  the  testator  devised  to  his  son 
Lemuel  for  life  and  after  his  death  to  his  "issue,"  but  if  he  left 
no  "issue,"  then  to  those  of  his  "heirs  who  shall  then  be  living, 
in  equal  shares,  by  right  of  representation."  Lemuel  died 
leaving  him  surviving  only  an  adopted  daughter,  who  was 
adopted  in  1891.  The  question  was  whether  the  adopted  child 
came  within  "issue"  or  "heirs."  The  ]\Iassachusetts  court  held 
that  under  the  adoption  act  as  it  stood  since  1876,  the  adopted 
child  could  not  come  under  either  designation,  but  it  again 
intimated  its  opinion  that  under  Sewall  v.  Roberts,  the  result 
must  have  been  otherwise  and  that  the  amendment  of  1876  made 
a  material  change  in  the  law  with  regard  to  the  rights  of  adopted 
children  and  probably  was  passed  in  consequence  of  the  decision 
in  Sewall  v.  Roberts. 

§  591.  The  proposition  of  >;  588  is  not  controverted  by  those 
cases  where  the  adopted  child  was  excluded  because  the  will 
or  settlement  was  executed  long-  before  there  was  any  adoption 
act  in  force:  Kven  where  "children"  or  "issue"  in  a  will  or 
settlement  refers  to  those  who  acquire  the  status  of  "child"  or 
"issue,"  yet  it  is  possible  to  say  that  the  status  referred  to  is 
such  as  may  be  ac(|uired  under  the  law  as  it  stands  at  the  time 
the  will  or  settlement  is  executed.  Hence,  if  no  general  adoption 
act  be  then  in  force,  the  child  adopted  under  a  subsequent  act 
will  not  be  included  in  those  designatr^d.  Some  cases  so  hold.^^ 
Whether  this  is  the  better  view  will  be  considered  hereafter, 
post,  §  595.    It  is  enough  at  this  point  to  indicate  that  the  eases 

«<  115  Mass.  262.  See  also  Jenkins   r.  Jenkins,   64   N. 

«3  189  Mass.   142.  H.    407;    Schafer    r.    Eneu,    54    Pa. 

fi8  Wallace  v.  Noland,  246  111.  535.       St.  304. 

681 


§  592]  FUTURE    INTERESTS  [CH.    XXII 

SO  holding  do  not  necessarily  interfere  with  the  proposition  that 
the  adopted  child  is  included  when  at  the  time  of  the  execution 
of  the  will  or  settlement  there  is  in  force  a  general  adoption  act 
giving  to  the  person  adopted  the  status  of  a  child  or  issue. 

§  592.  The  proposition  of  §  588  is  not  controverted  by  cases 
where  the  special  context  of  the  instrument  shows  that  "chil- 
dren" or  "issue"  meant  a  class  composed  of  those  who  ob- 
tained their  status  by  actual  birth  only:  ^•'^  In  Freeman's  Es- 
tate ^^  there  was  a  trust  to  paj'  the  income  to  the  testator's  sons 
and  daughters  and  then  to  pay  the  share  of  income  of  each  "to 
such  person  or  persons  of  kin,  to  such  son  or  daughter,"  as  he 
or  she  may  by  will  appoint,  and  in  default  of  such  appointment, 
to  the  child  or  children  of  such  son  or  daughter.  It  was  held 
that  as  a  result  of  the  words  ' '  of  kin ' '  the  power  to  appoint  did 
not  include  the  power  to  appoint  to  an  adopted  child  and  that 
the  gift  over  in  default  of  appointment  to  the  child  or  children 
by  natural  inference  also  required  that  they  be  of  kin — that  is,  of 
the  blood  of  the  testator.  As  a  matter  of  fact  the  opinion  of  the 
court  hardly  takes  up  the  contention  of  the  adopted  child. 

In  New  York  Life  Ins.  Co.  v.  Viele  "^  the  testatrix  devised  to 
her  daughter  Emily  for  life,  then  to  her  "then  living  lawful 
issue."  If  no  such  issue,  then  the  share  to  be  held  in  trust  for 
my  ten  grandchildren  hereinafter  named.  Emily  married  and 
had  no  children  by  birth,  but  had  a  child  adopted  under  the  law 
of  Saxony,  which  gave  her  the  status  of  a  child  or  issue.  The 
adopted  child  was,  however,  excluded  on  the  ground  that  the 
special  context  of  the  instrument  showed  clearly  that  "issue" 
was  used  as  including  only  descendants  by  blood  and  not  chil- 
dren by  adoption.""  No  purpose  would  be  served  by  analyzing 
the  special  context.  It  is  sufficient  to  say  that  the  special  con- 
text was  so  strong  that  the  court  remarked  in  conclusion :  "It 
would  be  difficult  to  conceive  of  a  clearer  indication  of  the 
purpose  of  the  testatrix  to  transmit  the  whole  estate  to  her  Own 
descendants."  '^^ 

6"  See  cases  cited  ante,  .584,  where  f'9  161  N.  Y.  11. 

"heirs"  by  the  special  context  was  "o  The  court  analyzes  the  special 

held    to   mean    only   heirs   by   birth,  context,  pp.  20-22. 

and    so    the    adopted    child    was    ex-  ^i  The    court    also    placed    its    de- 

cluded.  cision    upon    the    ground    that    "if 

68  40  Pa.  Sup.  Ct.  41.  Olga   had   been  adopted    under   the 

682 


ClI.    XXII]  LIMITATKJNS   TO    CLASSES  [§  593 

^  593.  The  proposition  of  >;  588  is  controverted  by  two  cases 
— one  from  Maine  and  the  other  from  Wisconsin.  In  Wood- 
cock's Appeal  ^-  the  testatrix,  making  a  will  in  1890,  eight  years 
after  her  son  Horatio  had  adopted  a  chihl,  devised  a  share  to 
Horatio,  and  in  case  he  died  before  the  death  of  the  life  tenant 
(which  event  happened),  then  over  to  "the  child  or  children  of 
said  deceased  child."  Horatio  died  leaving  only  the  adopted 
child.  It  was  held  that  siie  was  not  entitled.  This  could  not  go 
on  the  ground  that  the  child  did  not  have  the  status  of  a  child 
under  the  Maine  adoption  act,  tor  it  had  been  already  deter- 
mined in  several  cases,  and  among  others  Virgin  v.  Marwick,'^ 
that  the  person  adopted  did  acquire  the  status  of  a  child.  The 
Woodcock  case,  then,  goes  solely  upon  the  ground  that  the 
testatrix  must  be  held  to  have  used  the  word  "children"  when 
acquired  the  status  of  children,  but  only  those  who  were  children 
by  birth.  The  court  said:  "When  in  a  will  provision  is  made 
for  'a  child  or  children'  of  some  other  person  than  the  testator, 
an  adopted  child  is  not  included  unless  other  language  in  the  will 
makes  it  clear  that  he  was  intended  to  be  included,  which  is  not 
the  case  here.  "'^^  Nevertheless,  the  court  in  Virgin  v.  Marwick, 
had  just  held  that  "children"  as  used  in  an  insurance  policy  ob- 
tained by  the  adopting  parent  long  before  any  adoption  was  con- 
templated was  on  a  different  footing  and  did  refer  to  all  who 
acquired  the  legal  status  of  child,  even  though  it  were  by  adop- 
tion. Nor  does  the  court  find  any  difference  in  the  mind  of  the 
insured  or  the  testator  between  the  ease  where  the  testator  or 
the  insured  provides  for  his  children  long  before  any  adoption 
is  thought  of  and  the  case  where  somebody  else  provides  for  his 
children.  Plainly  there  is  none.  With  reference  to  possilile 
future  adoptions  the  mind  of  each  is  exactly  the  same.  In  most 
cases  probably  neither  the  third  party  nor  the  person  who  subse- 
quently becomes  the  ado])ting  i)arent  thinks  of  the  inclusion  or 
exclusion  of  an  adopted  child  at  all.  They  merely  use  general 
words  in  a  general  way  to  indicate  the  class  of  persons  who 
obtain  a  certain  status.    The  IVIaine  court  finds  its  only  basis  for 

statutes  of  this  state,  she  would  be  "- 103  Me.  214. 

precluded  from  taking  anything  un-  t3  97  Me.  578. 

der   this  will  by  the   express  words  ~*  103  Me.  214,  217. 

of  the  law  regulating  domestic  re- 
lations (S64)     *     *     *.." 

683 


§  593]  FUTURE    INTERESTS  [Ch.    XXll 

making:  a  difference  between  the  insurance  policy  of  the  adopt- 
ing parent,  obtained  long  before  any  adoption,  and  the  will  of 
a  third  party,  in  the  fact  that:  "Where  one  makes  provision 
for  his  own  'child  or  children'  by  that  designation,  he  should  be 
held  to  have  included  an  adopted  child,  since  he  is  under  obliga- 
tion in  morals  if  not  in  law  to  make  provision  for  such  child." 
This  is  an  interesting  proposition.  The  court  gives  the  words 
used  a  primary  meaning  different  in  the  two  cases,  because  it 
lielieves  the  moral  duty  in  one  differs  from  the  moral  duty  in 
the  other.  For  authority  the  Maine  court  rests  upon  Russell  v. 
Russell/^'  and  Scliafer  v.  Eneu,'^'  both  of  which  went  otf  on  the 
ground  that  the  adoption  act  in  force  was  too  meager  to  give 
the  person  adopted  the  status  of  a  child.  Schafer  v.  Eneu,  also 
went  off  on  the  ground  that  when  the  will  was  made  there  was 
no  adoption  act  in  force  and  vested  interests  were  created  under 
the  law  as  it  stood  before  any  adoption  act,  and  those  vested 
interests  could  not  under  the  constitution  be  interfered  with  by 
any  adoption  occurring  under  a  subsequent  act  of  the  legislature. 
In  Russell  r.  Russell  the  court  expressly  declared  that  had  the 
statute  been  as  broad  as  the  Maine  act  in  giving  the  person 
adopted  the  status  of  a  child  by  birth,  the  adopted  child  would 
have  been  included. 

In  Licliter  v.  Thiers  "''  a  testator  made  his  will  after  the  pas- 
sage of  a  general  adoption  act,  which,  so  far  as  the  rights  and 
status  of  the  adopted  child  are  concerned,  is  like  the  statute  in 
force  in  Massachusetts  in  1874,  and  like  the  Rhode  Island  and 
Illinois  acts.  The  testator's  will,  however,  was  made  long  be- 
fore any  adoption  had  occurred  or  was  thought  of.  The  testa- 
tor devised  to  Mary  for  life  and  then  to  her  children  living  at 
her  death,  with  a  gift  over  if  she  had  no  such  children,  to 
whomsoever  she  should  appoint,  and  in  default  of  appointment 
to  a  nephew  in  England.  The  testator  died  before  any  adoption 
occurred.  Mary  died  leaving  only  an  adopted  child.  It  was 
held  that  the  adopted  child  did  not  take.  This,  of  course,  could 
not  go  upon  the  ground  that  the  adopted  child  did  not  acquire 
the  status  of  a  child  in  whatever  manner,  but  only  those  who 
language  of  the  opinion  "'^  shows  that  the  court  inclined  to  a 

75  84  Ala.  48.  "  139  Wis.  481. 

76  ,54  Pa.  St.  304.  ^^  U.  487. 

684 


CpI.    XXII]  LIMITATIONS    TO    CLASSKS  [§  .3!J3 

rather  narrow  const riicl ion  ol"  the  statute  in  tliis  respect.  Never- 
theless, it  is  submitted  that  the  terms  of  the  statute  are  too  broad 
and  clear  to  jjievent  the  eonelusion  that  the  adopted  person 
obtained  the  status  of  a  child  by  birth.  The  basis  for  the  de- 
cision in  the  Wisconsin  case  was  that  according  to  the  proper 
construction  of  the  will  in  question  the  word  "children"  in- 
cluded in  the  first  instance  and  primarily,  not  those  who  acquire 
the  status  of  a  child  in  w^hatever  manner,  but  only  those  who 
were  children  by  actual  blood  relationship.  The  court,  however, 
refuses  to  make  any  such  distinction  as  was  made  in  the  Maine 
case.  It  insists  upon  the  primary  meaning  of  "children"  as 
including  only  children  by  birth,  whether  the  word  is  used  in 
the  will  of  the  adoi)ting  j)arent  or  in  the  w411  of  a  third  person, 
provided  always  it  be  used  long  prior  to  any  adoption.  The 
court  speaks  of  the  Woodcock  case  as  adopting  a  "pretty  arbi- 
trary rule  of  construction"  in  making  a  distinction  between  the 
will  of  the  adopting  parent  and  the  will  of  a  third  person.  The 
weakest  a.speet  of  the  opinion  in  the  Wisconsin  case  is  the  line 
of  cases  cited  as  "directly  in  point."  They  are  Schafer  v. 
Eneu,''^  Woodcock's  Appeal,^^  Wijeth  v.  Stone,^^  Blodgett  v. 
Stowell.^-  Schafer  v.  Eneu,  proceeded,  as  has  already  been 
several  times  indicated,^"'  principally  upon  the  ground  that  the 
Pennsylvania  statute  was  not  sufficiently  broad  to  give  the  per- 
son adopted  the  status  of  a  child  at  all.  The  Woodcock  case, 
the  W^isconsin  court  itself  speaks  slightingly  of,  and  refuses  to 
adopt  the  distinction  which  it  draws.  The  Wisconsin  court's 
special  reliance  upon  Wyeth  v.  Stone  and  Blodgett  v.  Stowell, 
is  quite  incomprehensible.  These  cases,  it  declares,  are  "sig- 
nificantly in  point  since  they  are  from  Massachusetts,  the  state 
from  which  it  is  supposed  our  statute  was  borrowed,  and  were 
decided  long  subsequent  to  Sewnll  v.  Roberts,^*  upon  which 
counsel  for  appellant  rely  with  confidence."  But  these  two 
later  Massachusetts  cases  went  off  on  the  special  statutory  pro- 
vision enacted  in  Massachusetts  two  years  after  Sewall  v.  Boh- 
erts  was  decided  and  in  express  terms  covering  the  very  point 
which  the  Wisconsin   case  had  before  it,  so  as  to  exclude  the 

'0  54  Pa.  St.  a04.  ^2  189  Mass.  142. 

«M03  Mc.  214.  ^^  Ante,  li  585. 

si  144  Mass.  441.  «^  115  Mass.  2fi2. 

685 


§  594]  FUTURE    INTERESTS  [Ch.    XXII 

adopted  child.  One  could  hardly  think  of  a  circumstance  that 
could  make  the  later  Massachusetts  cases  of  less  value  in  aiding 
the  Wisconsin  court  in  its  conclusion. 

§  594.    In  the  primary  meaning  to  be  placed  upon  ' '  chil- 
dren" or  "issue"  in  a  will,  settlement  or  insurance  policy,  no 
distinction  is  to  be  made  between  the  instrument  executed  or 
procured  by  the  adopting  parent  and  one  executed  or  pro- 
cured by  a  stranger:     Tirrell  v.  Bacon,^'^  Hartwell  v.  Tefft,^^ 
and  Bray  v.   Miles,^''  all  hold  that  the  words  "children"  or 
"issue"  in  the  will  of  one  other  than  the  adopting  parent  are 
sufficient  to  include  a  person  acquiring  by  an  adoption  act  the 
status  of  a  child.    These  same  cases  have  regarded  the  leading 
case  of  Sewall  v.  Roberts  ^s  as  necessarily  supporting  the  same 
result.      So    also   has    the    ]\Iassachusetts   legislature.^^      These 
cases,  therefore,  most  clearly  deny  any  distinction  in  the  pri- 
mary meaning  of  "children"  based  upon  whether  "children" 
is  used  in  a  will  or  settlement  of  one  other  than  the  adopting 
parent  or  the  will  or  settlement  of  the  adopting  parent.     In 
Lichter  v.  Thiers,^^  although  "children"  in  the  will  of  a  third 
party  excluded  an  adopted  child,  yet  the  court  insisted  that 
no  difference  was  to  be  made  between  that  case  and  the  case 
of  the  will  of  an  adopting  parent,  executed  long  before  any 
adoption  was   in   contemplation.      Only   the    Woodcock   case  ^^ 
suggests  that   a   difference  be   made.     If   our   Supreme   Court 
had  had  any  intention  of  making  a  distinction  founded  upon 
the  fact  that  the  will  or  settlement  was  executed  by  one  other 
than  the  adopting  parent,  it  certainly  should  have  done  so  in 
Butterfield  v.  Sawyer.^-     In  that  case  the  court  had  before  it 
the  deed  of  a  third  party  made  long  before  any  general  adop- 
tion act,  and  there  was  a  strong  special  context  in  favor  of 
"heirs  generally,"  meaning  "heirs  collateral  by  blood,"  and 
the  question  was  so  close  that  two  judges  dissented.     Clearly  it 
was  a  case  where  the  fact  that  the  deed  was  made  by  one  other 
than  the  adopting  parent,  if  it  were  to  be  given  any  effect, 
ought  to  have  defeated  the  adopted  child.     Yet  the  adopted 

85  3   Fed.   62    (U.    S.  Cir.    Ct.    of  «9  Aiite,  §  589. 

Mass.).  no  139  Wis.  481. 

«e  19  R.  I.   644.  »i  103  Me.  214. 

87  23  Ind.  App.  432.  92  187  111.  598. 

88  115  Mass.  262. 

686 


Ch.    XX 11 J  LIMITATIONS    TO    CLASSES  [§  oOo 

child  was  included  and  no  sugj^estion  was  made  b}'  this  court 
that  the  question  was  any  different  because  tiie  deed  was  ex- 
ecuted by  ojie  other  liian  the  adopting  parent  than  it  would 
have  been  if  the  deed  had  been  executed  by  the  adopting  parent 
long  before  any  adoption  was  in  conteniplatioiL  Bittterfield  v. 
Sawyer  at  least  indicates  that  in  Illinois  no  great  stress  can 
be  laid  upon  the  fact  that  the  deed  or  will  is  that  of  a  person 
other  than  the  adopting  parent. 

§  595.  Quaere  whether  the  fact  that  when  the  will,  settle- 
ment or  insurance  policy  is  executed  there  is  no  general  adop- 
tion act  in  force  will  prevent  the  word  "children"  from  includ- 
ing a  person  adopted  under  a  subsequent  adoption  act :  Where 
"heirs"  is  used  in  a  will  or  settlement,  it  seems  regularly  to 
have  been  taken  as  meaning  all  who  acquire  the  legal  status 
of  heir  at  the  time  when  the  class  is  determined — namely,  at 
the  death  of  the  ancestor.  Hence,  it  is  immaterial  whether 
when  the  will  or  settlement  is  executed  there  is  a  general  adop- 
tion act  in  force  or  not.^^  Logically  the  same  line  of  reason- 
ing should  be  followed  when  "children"  or  "issue"  is  used, 
as  referring  to  a  class  of  persons  Vv'ho  secure  the  status  of 
"child"  or  "issue"  at  a  future  time.  Whoever  obtains  the 
status  when  the  class  is  finally  determined  should  be  included. 
Hence  it  should  make  no  difference  that  when  the  will  or  settle- 
ment was  executed  no  general  adoption  act  was  in  force.  Such 
is  the  precise  holding  of  a  number  of  cases.^^ 

Wallace  v.  Noland  ^^  seems  directly  contra,  the  exclusion  of 
the  adopted  person  being  in  that  case  properly  based  only 
upon  the  ground  that  no  adoption  act  was  in  force  when  the 
will  was  executed. ^^     Biitterfield  v.  Saw-yer^^  is  distinguished 

o"  Butterfield  v.   Sawyer,   187   111.  »« See    also    Clarkson    i-.    Hatton, 

598;    Johnson's  Appeal,  88  Pa.  St.  143    Mo.  47,  where   one  reason  for 

346;   McOunnigle  v.  McKee,  77  Pa.  not  allowing  an  adopted  child  to  take 

St.  81.  a  statutory  remainder  to  "children" 

9*  Sewall    V.    Roberts,    115    Mass.  which  was  substituted  in  place  of  an 

262;    Tirrell    v.    Bacon,    3    Fed.    62  estate  tail,  was  that  when  the  Stat- 

(U.  S.  Cir.  Ct.  of  Mass.).    In  Hart-  ute  on  Entails  was  passed  there  was 

well   V.    Tofft,    19    R.    I.    644,   there  no    general    Adoption    Act.      There 

was  no  Adoption  Act  in  force,  but  were,  however,  other  i^oasons  for  the 

the  will  was  confirmed  after  a  gen-  result  reached, 

cral  Adoption  Act  had  l)oen  i)assed.  '•'"  187  111.  598. 

!«.-.  246  111.  535. 

687 


§  595]  FUTURE    INTERESTS  [Ch.    XXII 

because  there  the  word  "heirs"  in  the  deed  was  coupled  with 
the  word  "generally/'  This  the  court  thought  presented  a 
special  context  sufficient  to  hold  that  "heirs"  included  all  who 
had  acquired  the  status  at  the  time  when  the  class  was  finally 
determined.  This  suggests  that  if  the  will  contained  a  devise 
to  the  "lawful''  children  of  A  living  at  his  death,  it  might 
be  held  to  include  the  adopted  child,  though  no  adoption  act 
was  in  force  when  the  will  was  executed. 

In  Scliafer  c.  Eneit^^  a  testator  died  in  1851,  devising  a  life 
estate  to  his  wife,  remainder  in  fee  to  lier  children  and  the 
residue  to  the  testator's  children  in  fee.  After  the  adoption 
act  of  1855  the  wife  adopted  children  in  conformity  with  the 
act,  and  died  in  1861.  The  adopted  children  were  excluded. 
This  proceeded  primarily  upon  the  ground  that  the  adoption  act 
did  not  give  them  the  status  of  children,  but  only  the  status 
of  heirs.  The  court,  however,  did  say  that  the  testator's  chil- 
dren had  a  vested  interest  at  his  death  and  that  it  could  not 
be  divested  by  an  adoption  under  the  act  of  1855.  This  really 
involves  the  question  whether  the  word  "children"  meant  those 
who  acquired  the  status  at  any  time  before  the  wife's  death, 
when  the  class  closed.  If  it  did,  then  there  was  no  objection 
to  the  divesting  of  a  vested  interest  pursuant  to  the  actual 
meaning  of  the  testator's  language.  If,  on  the  other  hand, 
"her  [referring  to  the  wife]  children"  meant  only  children  by 
actual  birth,  then  the  subsequent  adoption  act  was  ineffectual 
to  confer  any  benefit  on  a  person  adopted,  even  though  it 
conferred  the  status  of  a  child  upon  the  person  adopted.  The 
court  in  declaring  the  act  of  1855  ineffectual  to  divest  a  vested 
interest,  must  have  had  in  mind  a  construction  of  "children" 
of  the  wife  which  restricted  those  who  could  take  to  such  as 
were  able  to  acquire  the  status  of  children  at  the  time  the  will 
was  executed.  In  this  view  it  presents  the  same  conclusion  as 
Wallace  v.  Nolwnd. 

In  .Jenkhis  v.  Jenkim'^^*  a  testator  in  1830,  long  before  there 
was  any  general  adoption  act,  died  leaving  a  will  devising  to 
his  son  William,  absolutely,  and  if  the  said  William  should  die 
"leaving  no  issue,"  then  over  to  a  brother.  William  died  in 
1886  leaving  only  an  illegitimate  child.     A  year  later  a   decree 

98  54  Pa.  St.  304.  »"  64  N.  H.  407. 

688 


Cn.   XXII]  LIMITATIONS  TO  ci-A.ssi:s  l§ij95 

of  adoption  of  liis  illej^itiinate  daiif^^litcr  upon  the  joint  petition 
of  himself  and  his  wife  was  entered.  It  was  held  that  the 
adopted  child  was  not  included  in  the  term  "issue."  It  would 
seem  that  this  result  might  iiave  gone  upon  the  ground  that 
the  adoption  decree  was  not  entered  until  after  the  death  of 
William.  Hence  the  adoption  proceedings  must  have  abated  so 
far  as  William  was  concerned  and  the  child  was,  therefore,  only 
the  adopted  child  of  the  mother.  The  court,  however,  actually 
put  its  decision  upon  the  ground  that  the  word  "issue," 
when  the  will  was  executed  and  the  testator  died,  had  a  statutory 
meaning  which  included  all  the  lawful  lineal  descendents,  and  as 
such  it  could  not  include  the  bastard  oi-  an  adopted  child,  and  any 
attempt  of  an  adoption  act  subsequent  to  the  testator's  death  to 
alter  the  meaning  of  the  word  "issue''  must  be  unconstitutional 
and  void.  The  soundness  of  this  last  may  well  be  doubted.'^'**  In 
any  event,  however,  the  reasoning  of  the  case  does  not  controvert 
the  general  proposition  that  "children"  or  "issue"  in  a  will  or 
settlement  of  one  other  than  the  adopting  parent,  executed  long 
before  any  general  adoption  act  is  in  force,  primarily  includes 
those  who  secure  by  adoption  before  the  class  is  determined, 
the  status  of  "children"  or  "issue." 

»fla  Butterfield  v.  Sawyer,  187  111. 
598,  semble.  See  also  Miller's  Ap- 
peal, 52  Pa.  St.  113. 


Kales  Fut.  Int.— 44  QQQ 


CHAPTER  XXIII. 

DIVESTING  CONTINGENCIES  AND  CONDITIONS  PRE- 
CEDENT TO  THE  TAKING  EFFECT  OF  EXECUTORY 
DEVISES  AND  BEQUESTS— ACCELERATION. 

§  596.  Interests  are  not  divested  unless  the  event  upon 
which  the  divesting-  is  to  occur  strictly  happens :  ^  This  is  the 
application  of  a  general  rule  that  the  courts  lean  against  a 
construction  which  will  divest  an  interest  already  vested.^ 
When,  however,  there  is  a  divesting  clause  and  the  event  hap- 
pens, it  must  be  given  effect.  Nevertheless,  there  are  several 
cases  in  our  Supreme  Court  reports  where,  upon  grounds  not 
perceived  by  the  writer,  the  gift  over,  which  might  possibly 
have  taken  effect,  was  ignored  and  the  first  taker  decreed  to 
have  an  absolute  and  indefeasible  interest  discharged  of  the 
gift  over. 

In  Pearson  v.  Hanson,^  where  a  residue  was  given  in  trust 
to  pay  the  income  for  ten  years  to  named  persons,  with  an 
express  gift  over  if  any  died  within  the  ten  year  period,  to 
such  deceased  person's  heirs-at-law,  the  court  held  that  each 
beneficiary  took  an  absolute  and  indefeasible  interest  which  on 
his  death  within  the  ten  year  period,  passed  to  his  devisee  and 
that  his  heir-at-law  had  no  claim.  This  was  in  effect  a  holding 
that  there  was  no  gift  over  at  all.  In  Rissman  v.  WiertJi^ 
there  was  a  devise  to  the  wife  "and  to  her  heirs  and  assigns 
forever,"  with  a  gift  over  after  her  death.  It  was  held  that 
she  took  a  fee  and  the  gift  over  was  apparently  ignored.^ 

§  597.  Effect  of  the  failure  of  a  gift  over  upon  the  preced- 
ing- interest:  Where  the  gift  over  is  to  persons  described 
as  "living"  at  the  first  taker's  death,  or  to  persons  who  may 

1  Henderson   v.   Harness,   176   111.  3  230  111.  610. 
.•?02 ;   McFarland  v.  McFarland,  177           *  220  111.  181. 

111.  208,  217;  Myers  v.  Warren  Coun-  5  Ortmayer  v.  Elcock,  225  111.  342, 

ty  Library  Assn.,  186  111.  214.  ante,    §  17:^.      See    also    Bigelow    v. 

2  Ante,  §  540.  Cady,  171  111.  229,  post,  §  661. 

690 


Cll.    XXIII]     DIVESTING    CONTINGEN'CIES — ACCELERATION  [§597 

come  into  being,  the  (|uality  of  sui-\'iving  or  the  existence  of 
the  persons  designated  lias  been  held  to  be  a  i)art  of  the  divest- 
ing contingency.  If,  therefore,  there  are  no  survivors,  or  the 
persons  designated  do  not  come  into  existence,  the  first  taker's 
interest  will  not  be  divested/^  Duryca  v.  Duryea'  is  a  case 
of  this  sort.  There  the  gift  over  was  to  the  survivor  if  the 
first  taker  died  without  leaving  issue.  "Survivor"  did  not 
mean  "other"**  but  literally  "survivor."  Hence,  when,  upon 
the  death  of  the  first  taker  without  issue,  there  was  no  survivor, 
the  first  taker's  interest  was  not  divested.^ 

If  the  gift  over  fails  because  it  is  in  excess  of  a  power  or 
because  of  illegality  under  the  Mortmain  Acts  (as  distinguished 
from  illegality  for  remoteness),  but  the  divesting  contingency 
literally  happens,  it  has  been  held  that  the  first  taker's  interest 
is  divested.  1"  The  mere  taking  effect  of  the  gift  over  was  not 
part  of  the  divesting  contingency.  But  if  the  gift  over  is  void 
for  remoteness  then  if  any  other  gift,  whether  by  the  testator  or 
due  to  descent  upon  an  intestacy,  were  given  effect,  it  would 
equally  offend  the  Rule  against  Perpetuities.  No  divesting  of 
the  first  taker's  interest  by  the  happening  of  the  divesting  con- 
dition is,  therefore,  permitted  to  occur. ^^ 

Suppose  the  gift  over  fails  because  of  lapse  where  the  gift 

« Harrison  v.  Foreman,  5  Ves.  Perpetuities,  2n(l  e<l.  §786),  but  he 
207  (1800)  ;  Jackson  v.  Noble,  2  only  suggests  that  the  decision  is  in- 
Keen  590  (1838).  explicable    to     him     because     it    is 

7  85   111.   41.  "against  the  marked  policy  of  the 

8  Post,  §  606.  law  for  not  readily  divesting  vested 

9  See  also  South  Norwalk  Trust  estates. ' '  That  policy,  however,  is 
Co.  V.  St.  John,  92  Conn.  168,  where  only  one  of  the  aids  to  interpreta- 
there  was  a  provision  of  forfeiture  tion.  When,  however,  the  court 
if  any  beneficiary  contested  the  will,  finds  a  clearly  expressed  divesting 
with  a  gift  over  to  those  who  did  not  contingency  which  has  happened  and 
contest.  All  contested,  so  there  where  the  person  is  in  esse,  but  the 
could  be  no  gift  over.  There,  nev-  gift  fails  because  of  a  rule  of  law 
ertheless,  was  held  to  be  an  intes-  defeating  expressed  intent,  the  pol- 
tacy.  icy  of  the  law  against  divesting  in- 

10  Doe    r.    Eyre,    5    Com.    Bench.  terests  would  seem  to  have  no  logi- 
713   (1848)  ;    Robinson  v.  Wood,  27  cal  bearing  on  the  question  of  inter- 
Law   J.   Ch.   726    (1858).     See  also  j)retation  of  the  language  used. 
Hurst    V.    Hurst,    21    Ch.    Div.    278,  u  See  post,  §§705-709   for  a  full 
284-286,  290,  293,  294   (1882).  discussion  of  the  effect  on  prior  in- 

Mr.  Gray  strongly  disapproved  of  terests  of  the  failure  of  subsequent 
Robinson    v.    Wood     (Rule    against       interests  because  of  remoteness. 

691 


§  598]  FUTURE    INTERESTS  [Ch.    XXIII 

over  is  to  A  siniplicitcr  if  tlie  lirst  taker  dies  witliout  leaving 
issue.  This  is  not  quite  the  same  as  where  the  gift  over  is  to 
A  if  he  survives  the  first  taker ;  nor  is  it  quite  the  same  as  vi^here 
the  gift  over  fails  for  illegality  (other  than  for  remoteness). 
In  O'Mahoneij  v.  Burdctt '^'-  the  first  taker's  interest  was  di- 
vested.    In  a  New  Jersey  case  ^'-^  it  was  not. 

If  the  divesting  contingency  happens  and  the  gift  over  is  only 
for  life,  the  interest  of  the  first  taker  is  not  wholly  divested 
but  only  divested  pro  tanto  to  serve  the  life  estate.^^ 

§  598.  Effect  upon  an  executory  devise  of  the  failure  of  the 
prior  g^ft:  Usually  the  gift  over  takes  effect  upon  some  event 
which  divests  the  preceding  interest.  Occasionally  the  case 
arises  where  the  prior  gift  fails  for  a  reason  which  raises  a 
question  whether  or  not  the  event  has  happened  upon  which 
the  gift  over  is  to  take  effect. 

Suppose  the  first  gift  is  to  a  class — such  as  the  children  of 
A — with  a  gift  over  if  they  die  under  twenty-one  to  B.  If  no 
members  of  the  class  ever  come  into  being  B  will,  nevertheless, 
take.^^  If  a  member  of  the  class  does  come  into  existence,  but 
dies  under  twenty-one  after  the  testator's  death,  clearly  the 
gift  over  will  take  effect.^*'  If  a  member  of  the  class  comes 
into  being  and  dies  under  twenty-one  in  the  life  of  the  testator 
the  gift  over  takes  effect  ^'^  because,  following  the  general  rule  ^^ 
"die"  means  "die  either  before  or  after  the  testator's  death."  i® 
If  a  member  of  the  class  comes  into  being  and  survives  twenty- 

12  L.   K.  7   Eng.   &   Ir.  App.   Cas.  it  willing    v.    Blaine,   .''.    P.    Wms. 

.388   (1874).  113   (1731). 

I'iDrurnmond's    Ex'rs    v.    Drum-  is  Jnfe,  §§  531,  532. 

mond,    26    N.    .7.    Eq.     (11    C.    E.  i9  This  was  overlooked  by  our  Su- 

Green)   234.  preme   Court    in    Frail   v.   Carstairs, 

!■*  Gatenby  v.  Morgan,  1  Q.  B.  Div.  187  111.  310.    In  that  ease  there  was 

685    (1876)  ;    Brown  v.   Brown,   247  a  devise  to  James,  the  son  of  the  tes- 

111.    528.      But    see    Doe    v.    Dill,    1  tator,  in  fee,  but  if  James  died  un- 

Hou8t.     398      (Del.     1857),     (three  married  then  over  to  other  children, 

judges  to  two).             ■  James  died  unmarried  in  the  life  of 

15  Jones   I'.  "Westcomb,   1  Eq.  Cas.  the  testator.     It  was  held  that  see- 

Abr.  245,  pi.  10  (1711).  tion    11   of  the   Statute   on   Descent 

i«  Subject,    of    course,    where    the  applied  and  there  was  an  intestacy, 

interests  are  legal  and  in  land,  and  That  section,  however,  by  its  terms 

the  first  taker  has  a  life  estate,  to  applied   only  in  case  the  will   itself 

the   question   of  destruetihility,   dis-  did  not  j)rovide  for  a  lapse.     But  if 

cussed  ante,  §105.  "die"  meant  "die  either  before  or 

692 


Ch.    XXIII  I     DIVESTING    CONTINGENCIES — ACCEI.ERATION         [§598 

one  and  dies  in  tlio  lifetime  of  tho  testator,  it  has  been  held 
that  the  gift  over  does  not  take  etfect  although  the  iirst  gift 
fails.2"  In  this  State  a  lapse  not  having  been  provided  for, 
by  the  will,  the  requirement  of  section  11  of  the  Act  on  Descent, 
which  causes  that  section  to  apply  when  a  lapse  has  not  been 
provided  for,  must  be  complied  with. 

Suppose  the  first  gift  is  of  an  absolute  interest  to  A,  with 
a  gift  over  on  the  intestacy  of  the  first  taker  to  B,  and  A  dies 
in  the  lifetime  of  the  testator  intestate.  In  Hughes  v.  Ellis  -'^ 
it  was  held  that  the  gift  over  failed.  Two  grounds  have  been 
suggested  for  this:  First,  the  artificial  rule  that  because  the 
gift  over  would  have  been  void  if  the  first  taker  had  survived 
the  testator,  it  must  be  void  if  he  did  not  survive.  So  far  as 
Hughes  v.  Ellis  rests  upon  such  a  rule  it  has  been  doubted  in 
England.--  Furthermore,  actual  results  do  not  support  such 
a  rule.  Suppose,  for  instance,  personal  property  be  bequeathed 
to  A  and  the  heirs  of  his  body,  but  if  A  die  without  issue  then 
to  B.  If  A  outlives  the  testator  and  takes,  B's  interest  is  void 
for  remoteness.  If,  therefore,  Hughes  v.  Ellis  be  followed,  it 
must  be  void  if  A  dies  in  the  testator's  lifetime.  There  seems, 
however,  every  reason  to  believe  that  under  the  English  authori- 
ties the  gift  to  B  would  not  fail.-'^  The  second  ground  upon 
which  Hughes  v.  Ellis  is  to  be  supported  is  this:  "Die"  means 
"die,  only  after  the  testator's  death,"  because  A  was  a  married 
woman  and  could  not  do  otherwise  than  die  intestate  during 
coverture  with  the  testator.  Whether  married  or  not,  however, 
A  could  only  die  intestate  as  to  the  property  devised  after  the 
testator's  death.  If  such  a  construction  be  accepted  the  result 
reached  is  sound.  In  this  State  a  similar  construction  would 
"result  in  section  11  of  the  Statute  on  Descent  applying  if  A 
were  a  child  of  the  testator. 

Mills  V.  Newberry-*  is  very  like  Hughes  v.  Ellis.  In  that 
case  the  testatrix  devised  to  her  mother  upon  a  condition  pre- 

after  the  testator's  death,"  the  will  -''  20  Beav.  193    (1855). 

(lid  provide  for  the  ease  of  a  lapse  -"-  Per    James,    L.    J.,    in    In    re 

and  section  11  would  have  no  appH-  Stainger's  Estate*,  6  Ch.  Div.  1,  14, 

eation.  15  (1877). 

20  Doo  V.  Brabant,  4  Term.  R.  706  -••''  1     Jarman,     5th     ed.     :121 ;     5 

(1792);    Tarbuck   v.   Tarbuek,   4   L.  Gray's  Cases  on  Prop.,  2ud  ed.  17:5. 

J.   [N.  S.J  Ch.  129   (IS.iS).  -'^  112  111.  123. 

693 


§  599]  FUTURE    INTERESTS  [Ch.    XXTII 

cedent  that  the  hitter  make  a  will  devising  all  that  she  should 
leave  unspent  and  undisposed  of  at  the  time  of  her  death  to  a 
charity  mentioned.  The  mother  refused  to  make  the  will.  It 
was  held  that  the  whole  gift  to  the  charity  failed.  The  court 
disregarded  the  formal  condition  precedent  to  the  gift  to  charity 
contained  in  the  proviso  that  the  mother  must  make  a  will  and 
treated  the  ease  as  if  the  gift  were  to  the  charity  designated  of 
so  much  as  remained  undisposed  of  and  unspent.^^  Viewed  in 
this  way  there  would  have  been,  if  the  mother  had  accepted  the 
provision  made  for  her,  an  insuperable  objection  to  the  gift  over. 
It  would  have  been  an  executory  devise  by  way  of  forfeiture 
upon  an  attempted  alienation  by  will  -^  or  upon  intestacy .2 ^ 
The  result  reached  should  not  be  sustained  upon  any  such  rule 
as  that  a  gift  over,  void  if  the  first  taker  survived  the  testator, 
would  be  void  if  the  first  taker  died  before  the  testator.  We 
are  brought,  therefore,  to  the  question:  What  is  meant  by  the 
phrase,  "what  remained  undisposed  of  and  unspent."  When 
the  first  taker  renounced  she  could  not  spend  or  dispose  of  any 
of  the  subject-matter  of  the  gift  and  this  situation  existed  retro- 
actively from  the  testatrix's  death.  Why,  therefore,  as  to  the 
entire  fund  was  not  the  condition  fulfilled  upon  which  the 
charity  was  to  take;  and  why  was  not  the  subject  of  the  gift 
definite  in  amount  and  valid  ? 

§  599.  Acceleration  of  future  interests :  If  a  gift  be  made 
to  A  for  life  with  a  gift  over  to  B  to  take  effect  whenever  and 
however  the  preceding  estate  determines,  then,  of  course,  no 
matter  how  A's  life  estate  is  terminated  B's  interest  will  at 
once  take  effect  in  possession.  If  the  interests  created  are  to 
A  for  life  and  "at  A's  death"  then  to  B,  by  a  long  course  of 
construction  already  referred  to,^^  "at  A's  death"  means  "at 
the  termination  of  A's  life  estate,  whenever  and  however  that 
may  occur."  The  case  is  precisely  the  same  as  that  first  put 
and  B's  interest  takes  effect  whenever  and  however  A's  life 
estate  is  terminated.  In  both  cases  alike  it  is  often  said  that 
B's  interest  is  vested  (in  the  feudal  sense)  and,  therefore,  it  is 
accelerated  upon  the  termination  of  A 's  life  estate,  however  that 

25  7^,132-1,34.  27  Posi,  §1^  720  et  seq. 

2»Post,  §719.  ^sAnte,   §330. 

694 


Ch.    XXIllJ     DIVESTING    CONTINGENCIES ACCELERATION         [§599 

may  occiii-.'-''  These  results  have  been  reaehed  by  our  Supreme 
Court.^" 

Suppose  the  interests  created  are  to  the  widow  for  life,  with 
a  direction  to  the  executor  to  sell  "at  her  death"  and  divide 
the  proceeds  between  A  and  B.  "At  the  widow's  death"  here 
means  only  "at  the  termination  of  the  widow's  life  estate, 
whenever  and  however  that  occurs,"  so  that,  if  the  widow  re- 
nounces, the  executor  must  sell  at  once  and  divide.  Accelera- 
tion, therefore,  occurs.-"^  Suppose,  however  the  direction  is  that 
the  executors  in  the  case  last  put  shall  sell  and  divide  the  pro- 
ceeds between  B  and  C,  "or  their  heirs."  If  the  widow  re- 
nounces there  is  an  acceleration  of  B's  and  C's  interest.  The 
executor  would  hold  for  them  and  they  would  be  entitled  to 
the  immediate  equitable  interest.  But  would  they  be  entitled 
indefeasibly ?  That  depends  upon  whether  "or  their  heirs" 
effects  a  gift  over  if  B  and  C  die  before  the  actual  cUnth  of  the 
life  tenant  or  before  the  termination,  whenever  and  however 
that  occurs,  of  the  life  estate.  The  context  being  indecisive, 
either  construction  may  be  adopted.  The  policy  of  courts  to 
vest  interests  indefeasibly  at  the  earliest  moment  would  seem 
to  warrant  the  latter  construction.  Our  Supreme  Court  has 
so  held.-'^- 

Suppose  the  gift  over  after  the  life  estate  is  to  persons  who 
may  "be  living"  at  the  life  tenant's  death,  or  who  may  "sur- 
vive" the  life  tenant.  The  long  settled  construction  of  gifts 
to  persons  who  survive  the  life  tenant  is  that  the}-  must  literally 
survive  the  person  named  •'•' — not  tiiat  they  must  merely  survive 
the  termination  of  the  life  estate.  If,  therefore,  the  life  estate 
is  terminated  prematurely  by  renunciation  or  otherwise  there 
can  be  no  acceleration  of  the  gift  over.''^  The  same  veasoning 
controls  the  result  reached  in  Blatchford  v.  Newberry.^^    There, 

29  Eavcstaflf   v.  Austin,    19    Beav.  5.3.3.     But  see   Dale    v.   Bartley,  58 

591    (1854)  ;    Jull  v.   Jacobs,  3   Ch.  Ind.  101. 

Div.    703     (1876);    Cook's    Estate,  32  Sherman  f.  Flack,  283  111.  457. 

10  Pa.  Co.  Ct.  Rep.  465;  Craven  v.  See    also   Coover's    Appeal,    74    Pa. 

Brady,   L.    R.    4   Eq.   209;    L.    R-.   4  143. 

Ch.  App.  296.  33  J,! /e,  §309. 

•■■•"Marvin     v.    Ledwith,     111     111.  '^  Wakefield     v.     Wakefield,     256 

144;  Northern  Trust  Co.  i'.  Wheaton,  Til.  298;   Fowler  r.  Samuel,  257  111. 

249  111.  606,  614.  30. 

31  Sloeum    V.    Hagamau,    176    111.  3599111.11. 

695 


§  599]  FUTURE    INTERESTS  [Ch.    XXI II 

after  an  aiuuiity  to  the  widow,  the  daughters  took  life  estates 
with  gifts  over  to  their  children  and  a  further  gift  over  if  they 
died  without  leaving  children  (which  happened),  then,  if  the 
widow  survived,  after  her  death  "to  the  lawful  surviving  de- 
scendants of  my  brothers."  "Surviving"  here,  according  to 
the  usual  rule,  meant  surviving  the  actual  death  of  the  person 
referred  to  and  not  merely  the  termination  of  her  interest. 
Hence,  though  the  widow  renounced  and  the  daughters  died 
without  leaving  issue,  there  could  be  no  distribution  till  the 
death  of  the  widow.  Only  at  that  time  could  the  surviving  de- 
scendants be  ascertained. 


696     .  .    ; I 


CIIAI^TER  XXIV. 
CROSS  LIMITATIONS. 

TITLE    T. 
IMPLICATION  OF  CROSS  LIMITATIONS. 

§600.  General  principles:  In  Doe  v.  Wehh,^  cross  re- 
mainders were  implied  where  the  devise  was  to  daughters  in 
tail  as  tenants  in  common  and,  in  default  of  issue  of  the  daugh- 
ters, then  to  the  testator's  right  heirs.  This  result  was  reached 
upon  the  ground  that  if  cross  remainders  were  not  implied, 
then,  on  the  death  of  a  daughter  without  issue,  the  right  heirs 
would  take  a  moiety  of  the  estate,  whereas  the  intent  was  that 
the  right  heirs  should  take  the  whole  estate  together  after  the 
death  of  all  the  daughters  without  issue.  In  Lombard  v.  Wit- 
heckr  the  authority  of  Doe  v.  Wehh  and  the  usual  rule  for  the 
implication  of  cross  limitations  were  recognized.  Our  Supreme 
Court  there  quotes  Jarman's  summary"^  of  Jessel's  *  statement 
of  it:  "You  must  ascertain  whether  the  testator  intended  the 
whole  estate  to  go  over  together.  If  you  once  found  that  to 
he  intended,  you  were  not  to  let  a  fraction  of  it  descend  to  the 
heir-at-law  in  the  meantime.  You  were  to  assume  that  what 
was  to  go  over  together,  being  the  entire  estate,  was  to  remain 
subject  to  the  prior  limitations  until  the  period  when  it  was  to 
go  over  arrived." 

Suppose  estates  be  limited  to  A,  B  and  C  for  life  as  tenants 
in  common  with  a  gift,  on  the  death  of  the  survivor,  to  their 
children.  A  and  B  die.  If  cross  remainders  be  implied  then 
C  will  take  the  whole  till  his  death.  Otherwise,  two  one-third 
interests  will  deseend  to  the  testator's  heirs-at-law.  If  the 
original  gift  be  upon  trust  so  that  the  life  estates  are  equitable, 
then  the  heirs  will  take  only  until  the  death  of  C,  when  the 

1  1  Taunt.  234  (1808).  ^  Maden  c.  Taylor,  4o  L.  J.  N.  S. 

2  17."?  111.  396,  409-411.  o69  (1876). 

3  2  Jarnian  on  Wills  (R.  &  T.  ed.), 
552. 

697 


§  601]  FUTURE   INTERESTS  [Ch.    XXIV 

ultimate  future  interest  will  come  in.  The  existence  of  this 
gap  into  which  the  heirs  come  for  a  short  period  only,  is  the 
ground  upon  M'hich  the  cross  remainders  in  the  case  put  are 
regularly  implied.^  It  is  argued  from  the  fact  that  the  heir 
is  to  be  ultimately  excluded  that  there  is  an  expressed  gift  for 
the  gap  into  which  he  would  come.  If  there  be  no  trust — i.  e., 
if  the  estate,  be  legal — the  result  is  the  same.  It  might  be 
urged  that  in  such  a  case,  upon  the  death  of  A,  the  heir  would 
take,  and  the  future  interest  would  be  entirely  destroyed  as 
to  one-third  of  the  estate.^  But  the  rule  which  operates  to 
destroy  the  future  interest  is  a  rule  of  law  which  defeats  the 
intention  of  the  testator.^  The  actual  intent  expressed  is  ex- 
actly the  same  as  when  the  interests  were  equitable.  The  con- 
struction, therefore,  which  gives  us  cross  remainders  by  implica- 
tion in  that  ease  should  raise  them,  in  the  same  way,  where  the 
interests  are  all  legal.     It  is  so  held.^ 

§601.  Cheney  v.  Teese»  and  Addicks  v.  Addicks:  ^o  In 
Cheney  v.  Teese  the  testator  devised  to  his  grandchildren  ab- 
solutely, after  the  death  of  two  daughters,  who  were  given  life 
estates  as  tenants  in  common.  The  Supreme  Court  first  held  that 
the  grandchildren  were  not  to  take  till  after  the  death  of  both 
daughters.  That  would  seem  to  have  made  a  plain  case  for 
the  implication  of  cross  remainders  for  life.  The  court,  how- 
ever, held  that  each  daughter  took  an  estate  for  her  own  life 
in  one  half  and  an  estate  for  the  life  of  the  other  in  the  same 
half.  Upon  the  death,  therefore,  of  one  daughter  before  the 
other,  the  heirs  or  devisees  of  the  deceased  daughter  would  take 
instead  of  the  other  daughter.  The  ground  for  this  construc- 
tion, in  preference  to  that  of  cross  remainders  by  implication, 
is  not  perceived. 

In  Addicks  v.  Addicks  the  limitations  were  to  the  testator's 
sons  during  their  lives  and  after  the  death  of  both,  over  to  the 
testator's  grandchildren.  This  presented,  in  effect,  the  same 
situation  as  Cheney  v.  Teese.  It  was  held  that  cross  remainders 
would  he  implied  according  to  the  general  rule.    Cheney  v.  Teese 

5  Seott  V.  Bargeman,  2   P.  Wms.  7  Ante,  §  97. 

68,  (1722);   Armstrong  v.  Eldridge,  8  Ashley   v.    Ashley,    6    Sim.    358, 

.^  Bro.  C.  C.  215  (1791).  (1833). 

8  Fearne,  Contingent   Remainders,  »  108  111.  473. 

310,  311.  ^  10  266  111.  349. 

698 


Ch.    XXIVJ  CROSS    LIMITATIONS  1^602 

was  distinguishptl  because  tliere  "the  question  of  an  estate  by 
implication  or  cross-remainders  *  •  *  was  not  raised  or 
passed  upon." 

TITLE  II. 
"SURVIVOR"  CONSTRUED  "OTHER." 

§602.  The  typical  case  where  "survivor"  is  construed 
"other":  "Survivor"  is  regularly  construed  "other"  where 
lands  or  personalty  are  devised  with  the  following  limitations: 
To  several  for  their  lives,  with  a  gift  over  to  the  issue  of  each 
tenant  for  life,  with  a  further  gift  over  on  the  death  of  any 
tenant  for  life  without  leaving  issue  to  the  surviving  tenants 
for  life  for  their  lives  respectively,  and  at  their  death  to  their 
issue,  with  an  ultimate  gift  over  on  the  death  of  all  the  tenants 
for  life  without  leaving  issue.^i  The  case  is  the  same  and  the 
result  is  the  same  if  in  place  of  the  limitation  "to  the  surviving 
tenants  for  life  for  their  lives  respectively  and  at  their  death  to 
their  issue,"  the  limitations  read,  "to  the  surviving  tenants  for 
life  in  like  manner  as  their  original  shares  were  given."  12  The 
reason  for  construing  "survivor,"  "other,"  under  these  cir- 
cumstances are  as  follows:  First,  there  is  a  possible  incongruity 
of  result  unless  survivor  be  construed  other.  For  instance, 
when  the  first  life  tenant  dies  leaving  issue  and  the  second  life 
tenant  dies  without  issue,  if  "survivor"  be  taken  literally,  there 

,  will  be  an  intestacy  as  to  the  share  of  the  life  tenant  dying  last. 

"  This  is  incongruous  in  view  of  the  fact  that  the  testator  has  pro- 
vided for  all  the  possible  contingencies  that  can  happen  except 
this  one.  Furthermore,  the  intestacy  is  especially  incongruous 
in  view  of  the  ultimate  gift  over  if  all  the  life  tenants  die  with- 
out leaving  issue.   Second,  the  fact  that  the  gifts  over  are  to  the 

11  Harman  V.  Dickenson,  1  Brown,  Smyth   [1904]    1   Ir.   35;    Cooper  v. 

Ch.    Cas.    91    (1781).     Cases   where  Cooper,  7  Houst.  (Del.)  488. 

realty  involved:  Cole  V.  Sewell,  4  D.  i^i  Cases     where     real     estate     in- 

&  War.  1;  2  H.  L.  C.  186;  Askew  v.  volved:    In    re    Tharp 's    Estate,    1 

Askew,    57    L.    J.    Ch.    629.      Cases  DoG.  J.  &  S..453;  In  re  Row's  Es- 

where  personalty  involved:   Lowe  v.  tato,    43    L.    J.    Ch.    347.      Cases 

Land,    1    Jur.    377;    In    re    Keep's  where  personalty  involved:    Holland 

Will,     32     Beav.    122;     Badger     v.  v.   Allsop,  29   Boav.   498;    Hurry  v. 

Gregory,   8   Eq.   78;    Waite   v.   Lit-  Morgan,  3  Eq.  152;  In  re  Palmer's 

tlewood,   8   Ch.   App.    70;    Wake   v.  Trusts,    19   Eq.   320    (ultimate   gift 

Varah,  2  Ch.  Div.  348;   Garland  v.  over  not  mentioned). 

699 


§  603]  FUTURE    INTERESTS  [Ch.    XXIV 

survivor  for  life  and  then  to  his  issue  in  the  same  manner  that 
the  original  shares  to  the  life  tenants  were  limited  for  life  and 
then  to  their  issue,  makes  it  incongruous  that  the  issue  of  parents 
should  take  or  not,  depending  upon  whether  the  parents  actu- 
ally survive  or  not.  The  survivorship  of  the  parents  is  obviously 
irrelevant  in  any  question  as  to  whether  the  issue  of  either  of 
the  children  should  take.  Third,  the  real  difficulty  is  in  con- 
struing "other"  as  a  secondary  meaning  of  "survivor."  The 
two  words  are  obviously  very  different.  No  dictionary  prob- 
ably gives  "other"  as  a  secondary  meaning  of  "survivor."  The 
secondary  meaning  is  forced  by  authority. 

§  603.  Suppose  in  the  typical  case  given  the  ultimate  gift 
over  on  the  death  of  all  the  tenants  for  life  without  leaving  issue 
be  eliminated:  The  authorities  are  in  conflict  as  to  whether  in 
such  a  case  "survivor"  shall  be  construed  "other."  Taking 
the  English  cases  chronologically  the  principal  holdings  have 
been  as  follows:  Milsom  v.  Awdrij,^^  (1800),  held  that  "sur- 
vivor" should  be  taken  literally.  Hodge  v.  Foot,'^*  (1865), 
and  In  re  Beck's  Trusts, ^^^  (1867),  reached  an  opposite  result 
though  purporting  to  justify  it  on  special  elements  of  context. 
In  re  Arnold's  Trust s,^^  (1870),  insisted  that  "survivor"  should 
be  construed  "other."  Beckwith  v.  Beckwith,^''  (1876),  fol- 
lowed Milsom  V.  Awdry.  In  re  Walker's  Estate,^^  (1879),  and 
In  re  Bownian,^^  (1889),  followed  In  re  Arnold's  Trusts,  while 
In  re  Horner's  Estate,^''  (1881),  and  In  re  Benn,^^  (1885),  fol- 
lowed Beckwith  v.  Beckwith.  Then  the  whole  matter  seems  to 
have  been  settled  by  the  Court  of  Appeal  in  Harrison  v.  Harri- 
son ^^  (1901),  which  held  that  "survivor"  must  be  taken  liter- 
ally. The  American  cases,  as  far  as  they  have  gone,  seem  to 
have  followed  In  re  Arnold's  Trusts  and  held  that  "survivor" 
meant  "other. "23 

At  one  time  Kay,  J.,  in  In  re  Bowman,  said  that  if  the  gift  to 

13  5  Ves.  465;  .5  Rev.  Rep.  102.                21  29  Ch.  D.  841. 

14  34  Beav.  .".49.  -^  [1901]  2  Oh.  136. 

15  16  Weekly  Rep.  189.  -•'  Balch   v.   Pickering,   1.54   Mass. 

16  L.  R.  10  Eq.  2.52.  363     (decided    before     Harrison     c. 
IT  46  L.   J.    (Cli.)    97;   25  Weekly       Harrison  and  now  rather  doubted  in 

Rep.  282.  Lawrence     v.     Phillips,     186     Mass. 

18  12  Ch.  D.  205.  320);    Fox's   Estate,   222   Pa.    108; 

19  41  Ch.  D.  525.  Carter     v.     Bloodgood's     Exr's,     3 

20  19  Ch.  D.  186.  Sandf.  Ch.   (N.  Y.)  29.3. 

700 


Ch.  XXIVJ  cross  limitations  H  604 

the  survivor  was  to  the  survivor  for  life  and  tlicn  to  tlic  sur- 
vivor's children,  only  children  of  the  survivors  literally  eould 
take  the  gift  over,  l)ul  if  the  n:ift  over  were  to  survivor  "in  the 
same  manner  as  they  took  their  original  shares,"  then  •"sur- 
vivor" meant  "other."  This  distinction  was  repudiated  in 
Harrison  v.  Harrison. 

§  604.  Suppose,  while  the  original  gifts  are  to  individuals 
for  life  and  then  to  their  issue,  the  gift  over  is  to  the  sur- 
vivor absolutely  and  not  merely  to  the  survivor  for  life  and 
then  to  the  survivor's  issue:  If  there  is  no  ultimate  gift  over 
in  ease  all  the  life  tenants  die  without  leaving  issue,  there  can 
be  no  ground  for  construing  "'survivoi-, "  "other."  The  two 
principal  reasons  given  for  such  a  result,  ante,  §  602,  are  lack- 
ing.24 

Suppose,  however,  there  is  a  gift  over  if  all  the  life  tenants 
die  without  leaving  issue,  and  suppose  also  that  there  were  origi- 
nal gifts  to  at  least  three  persons  for  life.  In  such  a  case  all  the 
contingencies  except  one  are  provided  for.  It  is  incongruous 
that  there  should  be  a  possible  intestacy  as  to  part  which  would 
occur  if  "survivor"  were  taken  literally.  That  reason,  then, 
exists  for  construing  "survivor,"  "other."  On  the  other  hand, 
since  the  gift  over  to  the  survivor  is  absolute  there  is  lacking  the 
incongruity  of  the  issue  of  one  dying  first,  taking  or  not,  accord- 
ing as  its  parent  survived  or  not.  There  is,  furthermore,  a  pos- 
sible incongruity  in  construing  "survivor,"  "other."  For  in- 
stance, A  might  die  without  issue,  B  die  with  is.sue,  and  then  C 
die  without  issue.  In  that  case  the  gift  over  could  not  take 
etifcct  and  if  "survivor"  be  construed  "other"  the  representa- 
tives of  A,  who  died  without  issue,  would  be  entitled  to  share  in 
the  portion  of  C,  who  died  without  issue.  Furthermore,  if  A 
died  without  issue,  his  share  would  go  to  the  survivors  B  and 
C.  Then  B,  if  he  died  leaving  issue,  would  keep  his  share.  Then 
when  C  died  without  issue,  his  original  share  would  go  to  the 

2*  Lee  V.  Stone,  1  Exeh.  674  App.  Cas.  548 ;  Fe  Corhett  's  Trusts, 
(1848).  Accord:  Twist  v.  Herbert,  H.  R.  V.  Johns,  591  (as  to  the  resi- 
28  L.  T.  N.  S.  489  (where  there  due)  ;  Lawrence  v.  Phillips,  186 
was  in  addition  an  ultimate  gift  Mass.  320.  See  also  Ferguson  v. 
over  in  case  all  the  life  tenants  Dunbar,  ?i  Bro.  Ch.  469,  note.  Con- 
died  without  leaving  lawful  issue  tra:  Alton  v.  Brooks,  7  Sim.  204; 
surviving  them);  Maden  r.  Taylor,  In  re  Cary's  Estate,  81  Vt.  112. 
45  L.  J.  Ch.  569;   King  v.  Frost,  15 

701 


§  605]  '         FUTURE    INTERESTS  [Ch.    XXIV 

representatives  of  A  as  well  as  those  of  B,  but  the  accrued  share 
wliich  C  took  from  A  would  not  go  over  but  would  pass  to  C  's 
representatives.  Weighing  incongruity  against  incongruity 
makes  it  difficult  to  say  which  result  should  prevail.  In  Twist 
V.  Herbert-^  "survivor"  was  taken  literally,  but  in  Lombard 
V.  Witbeck  -*^  our  Supreme  Court  seems  to  have  construed  it 
"other." 

Suppose  there  are  only  gifts  to  two  persons,  A  and  B,  for  life 
and  to  their  issue,  and  if  either  die  without  leaving  issue,  to  the 
survivor,  with  a  gift  over  if  both  die  without  issue.  Here  the  in- 
congruity of  taking  "survivor"  to  mean  "other,"  which  has 
just  been  referred  to,  is  not  present.  Shall  a  difference,  there- 
fore, be  made  in  this  case  so  that  "survivor"  will  be  regularly 
construed  "other"? 

§  605.  Suppose  the  first  gift  to  A  and  B  is  absolute  (instead 
of  being  for  their  lives  with  remainders  to  their  issue),  with  a 
gift  over  if  either  die  without  leaving  issue,  to  the  survivor: 
If  there  is  no  further  gift  over  in  case  both  die  without  leaving 
issue,  then,  of  course,  "survivor"  must  be  taken  literally.^'^ 

Suppose,  however,  there  is  a  gift  over  if  both  die  without 
leaving  issue.  In  favor  of  "survivor"  meaning  "other,"  it 
might  be  said  that  the  issue  were  evidently  to  take  if  at  all 
through  the  parent.  To  this  it  may  be  replied  that  since  the 
parents  take  absolutely  they  can  dispose  of  the  property  as 
they  please  and  there  is  no  assurance  that  their  issue  would 
take.  It  may  be  urged  that  all  but  one  contingency  is  provided 
for  and  that  if  that  is  provided  for  by  construing  "survivor," 
"other,"  then  the  issue  of  one  dying  first,  leaving  issue,  may 
take  from  their  parent.  Again,  however,  this  is  by  no  means 
certain  to  happen,  because  the  parent  could  have  devised  his 
gift  over  to  a  stranger  or  to  charity.  There  may  be,  further- 
more, considerable  incongruity  in  taking  "survivor"  as  "other." 
If  there  be  three  devisees,  A,  B  and  C,  and  A  died  Mdthout  issue, 
B  died  leaving  issue,  and  then  C  died  without  issue,  and  if 
"survivor"  be  construed  "other,"  then  the  share  of  C,  dying 
without  issue,  will  go  one-half  to  B's  representatives  and  one- 
half  to  the  representatives  of  A  who  also  died  without  issue, 

25  28  L.  T.  N.  S.  489.  But  see  -'?  Crowder  v.  Stone,  3  Russ.  217 
post,  §  606.                                                    (1829).   Contra:  Lapsley  v.  Lapsley, 

26  173  III.  396.  9  Pa.  130. 

702 


("II.    XXIVJ  CROSS    LIMITATIONS  [  i>  606 

and  there  would  be  left  in  the  hands  of  C"s  representatives  oiie- 
lialf  of  the  share  of  A,  wlio  died  wilhout  issne. 

i;  606.  Suppose  the  limitations  are  to  sons  absolutely  at 
twenty-one,  and  to  daughters  for  life,  and  then  to  their  issue, 
but  if  either  sons  or  daughters  die  before  the  period  of  dis- 
tribution without  issue,  then  to  the  survivors:  If  there  is  no 
gift  over,  it  seems  clear  that  "siirvivoi-"'  must  he  taken  liter- 
ally .28 

Suppose,  however,  the  gift  to  tlie  survivors  is  to  them  "in 
the  same  manner  and  for  the  same  estates  as  their  original 
shares,"  with  a  gift  over  if  all  die  without  issue.  Here  the  sons' 
shares  are  absolute  and  not  "settled,"  and  the  daughters'  shares 
are  said  to  be  "settled." 

The  first  question  w^hieh  arises  is  whether  "survivor"  shall 
be  construed  to  include  the  children  of  life  tenants  who  have 
predeceased  a  daughter  who  dies  without  issue.  In  Liicena  v. 
Lucena-^  it  w^as  agreed  by  all  the  judges  that  this  should  be 
done.  The  fact  that  some  of  the  shares  were  settled  brought 
the,  case  precisely  within  the  typical  case  dealt  with  ante,  §  6U2, 
and  the  construing  of  "survivor"  as  "other"  was  not  prevented 
by  the  fact  that  some  of  the  shares  were  not  settled.-"^ 

The  second  (juestion  is  whether  "survivor"  should  be  put 
back  into  "other"  so  that  "other"  would  mean  "others  who 
survived  or  whose  stock  survived"  the  death  of  the  daughter 
dying  without  issue.  In  Lucena  v.  Luccua,  Jessel  held  that 
"survivor"  must  be  put  back  into  "other,"  and  that  while  the 
children  of  pre-deceascd  daughters  who  survived  the  death  of 
the  daughter  dying  without  issue,  took,  the  children  of  a  son 
wlio,  having  reached  twenty-one,  died  before  the  death  of  the 
daughter  who  died  without  issue,  were  not  entitled.  In  short, 
"survivors"  meant  "others  who  survived  or  whose  stock  sur- 
vived" only  where  the  issue  was  mentioned  as  taking  after  the 
parent's  life  estate.  This  was  reversed  by  the  Court  of  Ap- 
peal, which  held  that  "survivor"  meant  "other"  literally. 
"Survivor"  was  not  put  back  into  "other."  The  Court  of  Ap- 
peal declared  rather  pointedly  that  even  though  the  gift  over 
to  a  "survivor,"  so  far  as  it  referred  to  the  sons,  was  absolute, 

28Duiyea  v.  Duryea,  85  111.  41.  3o  See  also  Jackson   v.  Sparks,  38 

29  7  Oh.  Div.  255  (1877).  L.  J.  Ch.  (N.  S.)  75. 

703 


§  607]  FLTURE    INTERESTS  [Ch.    XXIV 

yet  that  did  not  provont  '"survivor"'  meaning  "other"  as  ap- 
plied to  the  sons.^^ 

s;  607.  Suppose  all  the  shares  are  "settled"  on  daughters, 
as  in  the  tjrpical  case  stated  ante,  5;  602,  and  suppose  one  daugh- 
ter dies  leaving  issue  and  then  her  issue  all  die;  subsequently 
another  daughter  dies  without  issue;  do  the  representatives 
of  the  issue  of  the  first  daughter  take  a  share  of  the  interest 
of  the  daughter  dying  without  issue?  In  other  words,  is  "sur- 
vivor" to  be  put  back  into  "other"  or  not?  It  is  believed  that 
this  question  was  logically  settled  by  Lucena  v.  Lucena.'^-  The 
fact  that  in  that  ease  some  shares  were  settled  and  some  were 
not  is  no  basis  for  making  a  distinction  between  that  case  and  a 
case  where  all  the  shares  are  settled.  The  fact  that  some  shares 
are  settled  and  some  are  not  is  material  on  the  (juestion  of 
whether  "survivor"  should  be  construed  as  "other."  It  is  not 
material  after  it  has  been  determined  to  construe  "survivor," 
"other,"  on  the  question  of  M^hether  "survivor"  shall  be  put 
back  into  "other"  or  not.  In  re  Bilham,^^  which  holds  that 
only  the  issue  of  the  pre-deeeased  daughter  who  survived  the 
daughter  dying  without  issue  could  take,  is  difficult  to  support 
In  re  Friend's  Settlement  ^^  is,  it  is  submitted,  in  fact  contra 
and  the  attempted  distinction  between  the  limitations  in  ques- 
tion in  that  case  and  in  In  re  Bilham  is  too  fine.  When  the 
courts  have  once  construed  "survivor,"  "other,"  refinements 
as  to  when  the  issue  must  survive  where  the  shares  are  "settled," 
while  other  legatees  do  not  have  to  survive  because  the  shares 
are  not  settled,  produces  a  complication  of  distinctions  which 
are  out  of  place  when  all  that  is  desired  is  a  definite  rule,  easil}' 
and  certainly  applicable,  to  cover  a  situation  which  the  testator 
has  obviously  neglected  to  provide  for. 

TITLE  III. 
ACCRUED  SHARES. 

§608.     Accrued   shares:      In  Lmribard  v.    Witheck^^  there 
was  a  devise  to  trustees  for  the  benefit  of  tJiree  grandchildren 

31  Compare  this  with  the  decision  '     ■'•^  [19011   2  Ch.  169. 
in  Twist  v.  Herbert,  28  L.  T.  N.  S.  ^t  [19061   1  Ch.  D.  47. 

489,  ante  §  604.  35  173  m,  396. 

327  Ch.  Div.  255  (1877). 

704 


CU.    XXIVJ  CF?()SS    LIMITATIONS  [§608 

(liii'in^-  tlieir  liv(>s,  with  a  pi'ovisioii  that  if  a  graiidchiUl  dii'd 
witliout  h'aving  issue,  "tlicu  one-third  to  go  to  survivoi-s  of  said 
three  grandchildren"  and  an  ultimate  gift  over  of  the  whole 
estate  if  all  three  <iTandcliildren  died  without  leaving  issue  them 
surviving.  One  grandchild  died  leaving  no  issue  him  surviving. 
Upon  a  bill  filed  to  construe  the  will,  it  was  held  that  the  .sur- 
viving two  grandchildren  each  took  one-half  of  the  one-third 
as  "survivors."  The  supreme  court,  however,  went  on  to  .set- 
tle all  questions  which  might  arise  under  the  will  hy  declaring 
that,  if  either  of  the  two  remaining  grandchildren  died  leaving 
no  i.s.sue  surviving,  the  share  already  accrued  by  survivorshi]) 
together  with  the  original  share,  would  pass  to  the  surviving 
grandchild.'^'''  This  rests  upon  the  same  argument  against  in- 
testacy which  is  set  out  in  §  602. 

36  7d.  p.  411.  The  reasoning  upon 
which  this  is  based  is  given  at  page 
409. 


Kiiles  Fut.  Int.- 


705 


CHAPTER  XXV. 
POWERS. 

TITLE    I. 

CLASSIFICATION,    VALIDITY    AND    EXTINGUISHMENT    OF 
POWERS— APPOINTMENT  IN  FRAUD  OF  POWERS. 

§609.  Classification  of  powers:  Powers  have  been  classi- 
fied ^  as  powers  appendant,  powers  in  gross  or  collateral,  re- 
served powers  in  gross,  and  powers  simply  collateral.  A  power 
appendant  is  one  which,  when  exercised,  operates  to  cut  short 
the  donee's  ow^n  estate — as  where  the  donee  having  a  fee  also 
has  power  to  appoint.-  Where  the  donee  has  a  life  estate  with 
power  to  appoint  a  remainder  the  power  is  said  to  be  in  gross 
or  collateral.  Where  the  donee  has  no  interest  in  the  property 
but  has  himself  created  the  power — as  where  one  conveying  a 
fee,  reserves  to  himself  a  power  to  appoint  or  revoke— the  power 
is  called  a  power  in  gross  or  collateral,  but  may  for  the  purpose 
of  distinguishing  it  from  the  second  class  of  powers  be  called 
a  "reserved  power  in  gross."  When  the  donee  has  no  interest 
in  the  property  and  has  not  created  the  power  it  is  called  a 
power  simply  collateral.'^ 

These  powers  ma}^  be  general  or  special.  They  are  general 
vdien  the  donee  may  appoint  to  anyone,  including  himself. 

Powers,  whether  general  or  special,  may  be  exercisable  by 
deed  or  will  or  by  deed  only,  or  will  only. 

^  610.  Validity  of  legal  interests  created  by  the  exercise  of 
a  power:  There  can  be  no  doubt  but  that  the  exercise  of  a 
power  in  this  state  is  sufficient  to  confer  a  legal  title  to  the  ap- 
pointee.    It  makes  no  difference  whether  the  power  is  created  in 

iGray,    "Release    and    Discharge  231  111.  238.     See  also,  Goodrich  v. 

of  Powers,"  24  Harv.  Law.  Rev.  Goodrich,  219  111.  426,  post,  §637. 
511.  3  For  instance,  powers  of  sale  by 

2  McFall   r.   Kirkpatrick,   236   111.  executors   who  have  no   title   to   the 

281;  Reichert  v.  Mo.  &  111.  Coal  Co.,  real  estate   subject  to  the  power, 

706 


Cii.  XXV 


POWDERS 


§610 


a  deed  ^  or  by  will.'^  The  appointee  under  the  power  takes 
title  from  the  donor  and  not  from  the  donee  of  the  power.*'  The 
exercise  of  the  power,-  therefore,  results  in  the  creation  of  a 
springing  or  shifting  future  interest.'^  Thus,  wc  have  instances 
where  the  exercise  of  a  power  by  an  executor  ^  or  a  life  tenant  '• 
cuts  short  the  interest  which  has  descended  to  the  heirs  at  law, 
so  that  a  springing  future  interest  is  created.  AVe  have,  also, 
cases  where  the  executor 's,'"  or  life  tenant's,"  exercise  of  a 
power  cuts  short  the  interest  of  the  devisees  under  the  will  .so 
that  a  shifting?  future  interest  is  created.^^  The  legal  estate  ap- 
pointed must,  then,   be  valid  because  the  conveyance   creating 


4  Butler  V.  Hucstis,  68  111.  594; 
Morrison  v.  Kelly,  22  111.  610. 

5  See  cases  cited  tn/ra  notes  8-12. 
Observe  also  that  since  1829  a 
statute  has  been  in  force  in  this 
state  as  follows:  "In  all  cases 
where  power  is  or  may  be  given 
in  any  will,  to  sell  and  dispose  of 
any  real  estate,  or  interest  therein, 
and  the  same  be  sold  and  dis- 
posed of  in  the  manner  and  by  the 
persons  appointed  in  such  will,  the 
sales  shall  be  good  and  valid. ' ' 
Laws  1829,  p.  191,  §  89  CI  A.  & 
D.  R.  E.  S.  466)  ;  R.  S.  1845,  ch.  85 
p.  426,  §93  (1  A.  &  D.  R.  E.  S. 
p.  514);  Laws  1872,  p.  77,  §97  (1 
A.  &  D.  R.  E:  S.  p.  570)  ;  R.  S.  1874, 
ch.  3,   §97. 

6  See  Christy  v.  Pulliam,  17  111. 
59,  where  Roach  v.  Wadham,  6  East, 
289,  is  cited  with  approval.  In  Pul- 
liam V.  Christy,  19  111.  331,  333,  the 
Court  said  ' '  nor  was  it  ever  doubted 
in  this  case,  that  Christy,  as  the 
appointee  under  the  power,  derives 
his  title,  not  under  the  person  exe- 
cuting the  power,  but  under  the 
will. ' '  Observe  also  Henderson  v. 
Blackburn,  104  111.  227. 

-Ante,  §8  73,  444,  452,  467. 
8  Rankin    v.    Rankin,   36    111.    293; 
Purser  i'.  Short,  58  111.  477;  Hughes 


V.  Washington,  72  111.  84;  Starr  v. 
Moulton,  97  111.  525;  Lambert  v. 
Harvey,  100  111.  338,  semble. 

0  Fairman  v.  Beal,  14  111.  244 ; 
Christy  v.  Pulliam,  17  111.  59;  Pul- 
liam V.  Christy,  19  111.  331;  Markil- 
lie  V.  Ragland,  77  111.  98;  Crozier  v. 
Hoyt,  97  111.  23.  See  also  Lomax  v. 
Shinn,  162  111.  124. 

loPahlman  v.  Smith,  23  111.  448; 
Hamilton  v.  Hamilton,  98  111.  254; 
Railsback  v.  Love  joy,  116  111.  442, 
semble;  Hawkins  v.  Bohling,  168 
111.  214,  220,  semble;  Kirkpatriek 
V.  Kirkpatriek,  197  111.  144,  semble. 
Also  Oilman  v.  Bell,  99  111.  144, 
semble. 

11  Funk  V.  Eggleston,  92  111.  515; 
Kaufman  v.  Breekenridge,  117  111. 
305;  Walker  v.  Pritchard,  121  111. 
221;  Gaffield  v.  Plumber,  175  111. 
521.  See,  also  the  dicta  of  the  fol- 
lowing cases:  Griffin  v.  Griffin,  141 
111.  373;  Clark  v.  Clark,  172  111. 
355;  Ely  v.  Dix,  118  111.  477;  Goff 
V.  Pensenhafer,  190  111.  200;  Kurtz 
V.  Graybill,  192  111.  445. 

12  Powers  of  sale  in  mortgages 
have  received  no  treatment  in  the 
text  of  this  volume.  They  wer(^ 
valid  in  instruments  executed  be- 
fore July  1,  1879;  Longwith  v.  But- 
ler,  3   Gilm.    (111.)    32.     By   an   act 


707 


§  611]  FUTURE    INTERESTS  [Ch.    XXV 

the  power  operates  under  the  Statutes  of  Uses  or  Wills/"  or  un- 
der modern  Aets  providing-  for  the  transfer  of  interests  by  deed. 

§  611.  Extinguishment  of  powers:  A  power  which  by  the 
terms  of  its  creation  must  be  exercised  within  a  certain  time  can- 
not be  exercised  after  that  time.^^ 

A  power  appendant,  whether  general  or  special,  is  releasable. 
It  i.s  in  fact  released  where  the  donee  conveys  the  fee  to  which 
the  power  is  appendant. ^^'^  But  if  the  donee  be  a  life  tenant 
M-ith  a  general  power  to  appoint  in  derogation  of  the  life  estate 
as  well  as  the  remainder,  then  the  transfer  by  the  donee  of  his 
life  estate  will  extinguish  the  power  only  so  far  as  the  life 
estate  is  concerned.  The  power  may  still  be  exercised  over  the 
remainder.!*'  If,  however,  the  life  estate  be  taken  on  execution 
the  power  is  not  discharged  in  any  respect. !'''  A  power  in  gross 
or  collateral  in  a  life  tenant  to  appoint  the  remainder  becomes 
a  power  appendant  when  the  life  tenant  secures  the  remainder 
in  himself.  In  that  event  the  donee  may  extinguish  the  power 
by  a  release  or  conveyance  of  the  fee  even  though  the  power  is 
cpecial.!^ 

If  the  power  is  simply  collateral  it  may  be  general,  but  it  is 
always  construed  as  special  unless  the  contrary  intention  ex- 
pressly appear — that  is  to  say,  the  power  is  always  construed 
as  preventing  an  appointment  by  the  donee  to  himself.  Hence, 
powers  simply  collateral  are  practically  all  special.  A  special 
power  simplj'  collateral  is  not  releasable.  The  donee  occupies 
r.  fiduciary  relation  to  the  object  of  the  power  and  the  release 
would  be  in  breach  of  that  fiduciary  obligation. 

The  difficult  problem  arises  where  an  attempt  is  made  to  re- 

of    1879    (Laws   1879   p.   211)    sueli  ^^Iit,  re  Eadeliffe,  L.  E.   11892]   1 

powers  in  instruments  executed  after  Ch.    -227    (1891).      Mr.    Gray,    how- 

that  date  are  void.  ever,  suggests  that  if  the  remainder 

^''- Ante,  §73.  were    obtained   merely   for   the   pur- 

14  Smyth  V.  Taylor,  21  111.  296.  pose  of  extinguishing  the  special 
See  also  Ely  v.  Dix,  118  111.  477,  power,  the  transaction  ^Y0uld  be  in 
482.  fraud   of  the   power   and   the  extin- 

15  McFall  V.  Kirkpatrick,  2.'!6  111.  guishment  of  the  power  would  fail: 
281.  "Release    and    Discharge    of    Pow- 

10  Jones  V.  Winwood,  .3  Mees.  &  ers, "  24  Harv.  Law.  Rev.  511,  5.33. 
W.  653   (1838). 

1"  Doe    V.    Jones,    10    Barn.    &    C. 
459   (1830). 

708 


Cii.  XXV]  POWERS  [§611 

lease  a  special  power  in  gross  or  collateral.  If  the  limitations 
are  to  the  donee  for  life  with  power  to  appoint  the  remainder 
to  such  one  or  more  of  his  children  as  he  sees  fit,  and  in  default 
of  appointment  to  the  children  equally,  a  release  to  the  children 
may  be  supported  as  an  appointment.  It  is,  therefore,  unob- 
jectionable.'" But  suppose  the  gift  in  default  of  appointment 
is  to  others  than  the  objects  of  the  power.  Is  the  release  to 
them  valid?  Clearly  the  donee,  while  he  does  not  have  to  ex- 
ercise the  power,  is  under  a  fiduciary  obligation  to  keep  himself 
in  a  position  where  he  can  exercise  it  as  long  as  he  lives.  His 
attempted  release  is  in  breach  of  that  obligation  and  should  be 
held  void.  Such  is  Mr.  Gray's  view  -"^  and  it  should  be  followed 
where  a  court  is  at  liberty  to  do  so.  The  English  cases,  however, 
permit  the  release.  The  reason  for  this  is  peculiar.  It  became 
settled  for  reasons  applicable  to  tortious  conveyances,  that  a 
tortious  conveyance  by  feoffment,  fine  or  recovery  by  the  life 
tenant  extinguished  the  power,^'  Then,  illogically  it  is  believed, 
the  English  courts  permitted  the  same  result  where  the  life 
tenant  simply  released, -- 

Suppose  the  power  in  gross  or  collateral  is  general,  but  ex- 
ercisable by  will  only.  The  English  cases  are  clear  that  it  may 
be  released,-'^  This  is  sound.  There  is  no  fiduciary  obligation 
because  there  are  no  objects  of  the  power  to  whom  such  an  ob- 
ligation can  run.  The  fact  that  the  donee  intended  the  donee's 
exercise  of  the  power,  or  opportunity  to  exercise  the  power,  to 
be  ambulatory  during  his  lifetime  has  reference  only  to  the 
character  of  the  power  while  it  exists.  It  is  not  intended,  if, 
indeed,  it  be  in  the  power  of  the  donor,  to  force  upon  the  donee 
the  retention  of  a  power  in  whieh  the  donee  alone  is  interested. 

19  Smith   V.  Plummer,   17   Law   J.  cepted    by    English    writers,    though 

Ch,   IN.  S.]   145   (1848),  not    without    protest.      Gray,    "  Re- 

20 ' '  Release     and     Discharge     of  lease    and    Discharge    of    Powers, ' ' 

Powers,"  24  Harv.  Law,  Rev,  511,  24  Harv,  Law  Rev.  511,  520, 

517-523.  -^  Barton    v.    Briscoe,    Jac,    603, 

21  West  V.  Berney,  1  Russ.  &  M.  607;  Page  v.  Soper,  11  Hare,  321 
431  (1819)  ;  Smith  r.  Death,  5  Ma<l.  (1853).  Mr.  Gray,  however,  con- 
371    (1820).  demns    the    rule    which    permits    the 

22  Horner  v.  Swann,  Turn.  &  K.  release  of  such  powers:  "Release 
430  (1823).  This  case,  though  uii-  and  Discharge  of  Powers,"  24  Harv, 
satisfactory,  seems  to  have  been  ac-  Law  Rev,  511,  523-531, 

709 


§  612]  FUTURE    INTERESTS  [Ch.    XXV 

§  612.  Appointment  in  fraud  of  powers :  Equity,  of  course, 
will  set  aside  the  exeeutioii  of  a  speeial  power  where  the  donee 
attempts  to  derive  a  personal  benefit  out  of  the  exercise  of  the 
power  for  himself,  or  where  he  attempts  by  the  exercise  of  his 
power  to  secure  a  benefit  for  objects  not  included  within  the 
power. -^ 

Where  the  power  is  special  and  testamentary  a  covenant  to 
appoint  in  a  particular  way  is  a  breach  of  the  fiduciary  obliga- 
tion and  not  enforceable  against  the  estate  of  the  covenantor.^^ 
Suppose,  however,  the  donee  of  a  special  testamentary  power 
covenants  to  exercise  it  by  will  in  favor  of  certain  objects  of 
the  power  and  then  does  so.  Clearly  there  was  a  fiduciary  ob- 
ligation to  the  objects  of  the  power  to  retain,  during  the  life  of 
the  donee,  the  power  untrammeled  by  the  personal  liability  on 
the  part  of  the  donee  for  the  breach  of  any  covenants  relating 
to  its  exercise.  The  covenant  and  the  exercise  of  the  power  pur- 
suant to  it  constitute  a  breach  of  that  obligation  and  should 
be  set  aside.  English  judges  have  admitted  that  such  is  the 
proper  result  to  be  reached  upon  principle.2<5  But  because  it 
had  been  settled,  as  a  matter  of  authority,  that  the  power  in 
gross  or  collateral  and  special  was  releasable  by  the  donee  ^~  in 
spite  of  the  fiduciary  obligation  to  the  objects  of  the  power,  the 
English  courts  felt  bound  by  authority  to  hold  that  an  appoint- 
ment pursuant  to  a  covenant  must  be  sustained. ^^ 

Suppose  the  power  is  testamentary  and  general  and  there  is 
a  covenant  inter  vivos  to  appoint.  Here  there  is  no  breach  of 
any  fiduciary  obligation  because  the  power  is  general.  The  cove- 
nantor is  liable  in  damages  for  the  breach  of  the  covenant.^!* 
But  equity  will  not  give  specific  performance  of  the  covenant 
against  a  different  appointee  for  the  reason  that  to  do  so  would, 
in  effect,  be  to  turn  the  power  into  a  power  to  appoint  inter  vivos 
which  was  against  the  expressed  intention  of  the  donor.^*^  It 
follows,  however,  from  the  fact  that  there  is  no  breach  of  any 

24  Leake,    Digest    of    Land    Law,  27  A?i/e,  §  611,  note  21. 

2nd  ed.   .311-313;    Sayer  v.   Humph-  28  Coffin  v.  Cooper,  supra;  Palmer 

rey,  216  111.  426.  v.  Locke,  supra. 

^^In  re  Bradshaw,  L.  R.    [1902]  29  Jn  re  Parkin,   L.   R.    [1892]   3 

1  Ch.  436.  Ch.   510. 

26  Coffin  V.  Cooper,  2  Drew.  &   S.  ^^  Id. 
365    (1865)  ;    Palmer    v.    Locke,    15 
Ch.  Div.  294  (1880). 

710 


Ch.  XXV]  POWERS  .   [§614 

fiduciary  obligation  that  if  tlic  donoe  does  appoint  pursuant  to 
tlic  covenant,  the  appointiiicnl   will  not  ho  set  aside.'" 

5^  613.  Special  restrictions  upon  the  capacity  to  be  a  donee 
of  a  power  or  to  exercise  a  power  attempted  to  be  conferred: 
Tn  Morrison  v.  Kelhj'-''-  it  was  held  that  the  power  to  appoint  a 
new  trustee  might  be  conferred  upon  a  court  of  chancery  which 
by  law  had  jurisdiction  to  perform  the  function  required  of  it, 
and  especially  where  the  estate  in  question  was  administered  by 
the  same  court  in  the  exercise  of  its  proper  jurisdictional  pow- 
ers. In  Leman  v.  Sherman  •'■'  it  was  held  that  the  probate  court, 
having  no  jurisdiction  to  act  in  such  mannei-,  could  not  be  made 
the  donee  of  such  a  power. 

Statutes  ■'■•  which  prescribe  the  conditions  upon  which  foreign 
corporations,  having  power  to  act  as  executor,  etc.,  may  do 
business  in  this  state,  prohibit  a  foreign  corporation  which  is  an 
executor  and  which  has  not  complied  with  those  conditions,  from 
exercising  a  power  as  to  land  in  this  jurisdiction. ^"^ 

An  amendment  of  1872  ■""  to  an  act  of  1857  creates  a  partial 
extinguishment  or  suspension  of  the  right  of  foreign  executors 
under  a  foreign  will,  to  exercise  the  power.  The  act  of  1857  ^" 
confers  power  upon  foreign  executors  under  wills  probated  in 
other  states  to  'exercise  a  power  of  sale  over  lands  in  this  state. 
The  amendment  of  1872  withdrew  this  authority  on  the  part 
of  foreign  executors  "where  letters  testamentary  or  of  admin- 
istration upon  the  estate  of  the  deceased  shall  have  been  granted 
in  tliis  state  and  remain  unrevoked." 

TITLE  II. 
ILLUSORY  APPOINTMENTS  AND  NON-EXCLUSIVE  POWERS. 

§614.  Illusory  appointments:  The  recent  Illinois  case  of 
Hawthorn  v.  Ulrich;'-^  has  disposed  of  the  doctrine  of  illusory 

siBeyfus  v.  Lawley,   L.  R.   App.  36  Laws   1871-2,  p.    292,   §34    (R. 

Gas.  411   (1903).  S.    1874,    ch.    30,    §34).      This   Act 

32  22  ni.  610,  was  further  amended  by  Laws  1879, 

33  117  111.  657.  p.  80. 

34  Laws  1887,  p.  144  and  Laws  3- Laws  1857,  p.  39  (1  A.  &  D. 
1889,  p.  99;  Laws  1871-2.  p.  296,  §  R.  E.  S.  p.  191).  See  also  Pennsyl- 
26  (R.  S.  1874,  ch.  32,  §26).  vania  Co.    r.   Bauerle,  143   111.  459, 

35  Pennsylvania     Co.     v.    Bauerle,  468. 

143  111.  459.  38  207   111.  430. 

711 


§  615]  FUTURE    INTERESTS  [Ch.    XXV 

appointments  in  this  state.  There  the  testator's  Avife  was  given 
a  })0\ver  to  appoint  "between  her  heirs  in  the  manner  in  which 
she  may  decide.''  She  appointed  bj-  her  will  five  dollars  apiece 
to  all  her  heirs  except  Grace  A.  Perkins,  and  to  her  she  appointed 
all  the  rest  of  the  property.  The  other  heirs  of  the  donor  tiled 
a  bill  for  partition  of  real  estate  included  in  the  appointment 
and  contended  that,  since  all  but  one  heir  received  only  a  nomi- 
nal share,  the  whole  appointment  was  illegal  and  should  be  en- 
tirely set  aside  and  the  entire  property  divided  equally  among 
the  wife's  heirs.  The  bill  was,  however,  dismissed  and  this  was 
affirmed.  It  was  held  that  the  power  was  non-exclusive — that 
is  "that  each  heir  of  the  wife  must  take  something";  but  the 
court  repudiated  the  doctrine  of  illusory  appointments,  mak- 
ing the  law  in  Illinois  substantially  what  it  is  in  England  under 
the  act  of  1  Wm.  IV  c.  46. 

§615.  Non-exclusive  powers:  It  should  be  observed  that 
the  doctrine  of  non-exclusive  appointments, — /.  e.  that  if  the 
power  be  to  appoint  among  a  class  without  express  words  in- 
dicating that  certain  members  of  the  class  may  be  excluded, 
each  member  of  the  class  must  take  something, — ought  logically 
to  fall  with  the  repudiation  of  the  rule  as  to  illusory  appoint- 
ments. As  soon  as  it  is  said  that  the  donee  must  appoint  some- 
thing to  each  member  of  the  class,  but  that  he  can  cut  any 
member  off  with  only  a  cent,  practically  the  power  becomes  ex- 
clusive. By  requiring  an  appointment  of  something  to  each 
member  of  the  class,  a  pitfall  for  testators  remains.  Accord- 
ingly, a  later  English  statute  •""  has  abolished  non-exclusive 
powers. 

§  616.  Partial  appointments  and  the  hotchpot  clause : 
Where  appointments  are  made  to  some  of  the  objects  of  a  special 
power,  but  the  whole  property  subject  to  the  power  is  not  ex- 
hausted, the  unappointed  part  is  divided  equally  among  those 
who  take  in  default  of  appointment,  which  is  usually  among  the 
objects  of  the  special  power.^*^  This  may  result  rather  unfairly. 
Of  five  children  among  whom  five  thousand  dollars  is  to  be  ap- 
pointed, four  may  receive  one  thousand  dollars  each  and  then 
one  thousand  dollars  may  remain  to  be  divided  equally  among 

39  37  and  38  Viet.,  e.  37. 

40  Wilson   V.   Piggott,  2   Ves.    Jr. 
351  (1794). 

712 


Ch.  XXV]  POWERS  [§617 

all  live.  So,  where'  appointments  by  diftVrent  instruments  are 
made  to  some  of  the  objeets  of  a  non-exclusive  power  and  the 
whole  fund  is  exhausted,  the  last  appointment  would  be  void 
and  the  amount  so  attempted  to  be  appointed  must  usually  ])e 
divided  amon^'  all  the  objeets  of  the  power  e(|ually.-''  To  remedy 
the  unfairness  resulting  from  the  applieation  of  these  rules 
the  so-called  hotchpot  clause  was  invented.  This  provided  in 
substance  that  "no  one  w^ho  takes  by  appointment  shall  (in 
the  absence  of  an  expressed  direction  in  the  ai)pointment  to  the 
contrary)  share  in  the  unappointed  part  without  bringing  his 
appointed  share  into  the  general  fund  to  be  distributed  :i^  in 
default  of  appointment."  Such  a  clause  operated  as  follows: 
If  ten  thousand  dollars  were  to  be  appointed  among  five  chil- 
dren and  the  donee  appointed  three  thousand  to  A,  one  thousand 
to  B,  one  thousand  to  C,  and  five  thousand  to  D,  the  last  ap- 
pointment of  five  thousand  was  void  and  that  sum  was  dis- 
tributed as  in  default  of  appointment,  but  only  among  those 
who  first  brought  their  appointed  shares  into  the  fund.  A  would 
naturally  refuse  to  bring  his  into  tho  fund  because  he  would 
then  be  worse  off.  B  and  C  would  bring  their  amounts  into  tiie 
fund.  That  would  make  seven  thousand  to  be  divided  equally 
between  B,  C,  D  and  E. 

TITLE  III. 
SURVIVAL  OF  POWERS. 

§  617.  Introductory:  At  the  beginning  of  the  17th  century 
it  was  stated  that  if  a  power  were  given  to  several  individuals 
and  one  dies,  the  power  could  not  be  exercised.  It  was  said  that 
the  power  does  not  survive.^-  This  rule  has  been  bi'oken  in  upon 
extensively  in  three  ways:  First,  by  statutes  relating  to  the 
survival  of  powers  in  executors;  second,  where  the  power  was 
actually  lost  equity  under  certain  circumstances  made  those  tak- 

11  Young    ('.   Waterpaik,    lo    Sim.  It  follows  that  where  a  power  ii^ 

199   (1842).  given  to  several,  all  who  are  in  esse 

42  Atwaters   v.    Birt,  2   Cro.    Eliz.  must   join    in    its   exercise    unless   a 
856    (43-44  Eliz.,   1603).     So  when-  contrary    direction    is    made:    Colc- 
a  power  is  conferred   upon  several  man  r.  Connolly,  242  111.  574;  Ding- 
it  cannot  be  exercised  by  less  than  man  r.  Boyle,  285  111.  144. 
all:  Wallace  c.  Wallace,  82  111.  530; 
Wilson  t".  Mason,  158  111.  ;;04. 

713 


§618] 


FUTURE    INTERESTS  [Ch.    XXV 


iug  in  default  of  appointment  constructive  trustees  for  those  in- 
terested in  the  exercise  of  the  power;  and  third,  courts  have 
strained  to  construe  the  power  as  exerciseable  by  whoever  occu- 
pied the  office  of  executor  or  trustee  where  the  power  was  con- 
ferred upon  persons  discharging  such  offices. 

Topic  1. 
Powers  Surviving  Pursuant  to  Statutes. 

§  618.  Survival  in  case  of  the  death  of  one  of  several  ex- 
ecutors:  Since  1829  we  have  had  in  the  statutes  of  this  state 
a  provision -13  that  where  "one  or  more  executors  shall  depart 
this  life"  before  exercising  a  power  of  sale,  "the  survivor  or 
survivors  shall  have  the  same  power,  and  their  sales  shall  be 
good  and  valid  as  though  they  all  joined  in  such  sale."  ^^  This 
act,  it  has  been  held,  applies  whether  the  power  is  in  the  form 
of  a  dii-ection  to  sell  or  merely  a  discretionary  right  to  sell.'*' 

§  619.  Survival  in  case  one  of  several  executors  refuses  to 
act:  The  statute  mentioned  in  §  618  covered  only  the  case 
where  one  of  several  executors  had  died.  It  did  not  apply  where 
one  of  several  executors  had  refused  to  act.  The  statute  of  21 
Hen.  VIII,  ch.  4,^^^  however,  covered  this  latter  case.  It  pro- 
vided that  when  part  of  the  executors  "do  refuse  to  take  upon 
him  or  them  the  administration"  of  the  will,  and  the  other  or 
others  do  accept,  then  the  exercise  of  the  power  by  those  accept- 
ing shall  be  valid.  In  Clincfelter  v.  Ayres,^'  and  Pahhnan  v. 
Smith  4  8  it  was  held  that  under  a  general  act,  in  force  in  this 
state  since  1807  "''^  adopting  the  common  law  of  England,  this 

43  Laws  1829,  p.  191,  §  89;   E.  S.  "7  16  111.  329,  334. 

1845,  ch.  109,  §93;  Laws  1871-2,  p.  48  23  111.   448,   452.    See  also  Ely 

775,   §97;    E.   S.   1874,  ch.   3,   §97;  v.  Dix,  118  111.  477,  481. 
Kurd's  E.  S.   (1903),  ch.  3,  §97   (1  49  Except    from   March    30,    1818, 

A.  &  D.  E.  E.  S.  pp.  514,  570).  to  Feb.  4,  1819:  Laws  1807,  Pope's 

"44  Thus,    in   Ely   v.    Dix,    118   111.  Compilation   of    1815,    p.    34;    Laws 

477,   a   sale    by   one   executor   after  1819,  approved  Feb.  4,  1819,  E.  L. 

the' death   of   the    other  was   valid.  1833,  p.  425    (1   A.   &  D.  E.  E.  S. 

See  also  Spengler  v.  Kuhn,  212  111.  913;   2  A.  &  D.  E.  E.  S.  1668)  ;  E. 

136    191  S.   1845,  ch.   62,    §1,  p.   333;    E.   S. 

45  Ely' t'.  Dix,  118  111.  477.  1874,   ch.   28;    Kurd's  E.   S.    (1903) 

46  5  Oray  's   Cases  on  Prop.,  2nd  ch.  28,  p.  435. 
ed.  814. 

714 


Ch.  XXV J  POWERS  [§  620 

act  was  in  force  in  Illinois.  Since  1872  the  substance  of  tlie 
statute  of  lien.  VIII  has  been  embodied  in  our  laws  in  terms.-''" 
In  Pahlman  v.  Smith, ''^  and  Ely  v.  Dix,^'-  therefore,  where  the 
executors  not  joining  in  the  .sale  had  refused  to  act,  tUe  sale  was 
valid.  It  made  no  difference  whether  there  was  a  direction  to 
sell  or  a  discretionary  power  merely. -"^ 

Is  there  any  rule  as  to  how  the  executor's  refusal  to  act  must 
appear?  In  Clinefelter  v.  Ayres,^^  and  Wardwell  v.  McDowell,^-' 
it  is  hinted  that  where  letters  testamentary  issue  from  a  court  of 
record,  "record  evidence  of  refusal  or  renunciation  was  alone 
competent  to  establish  the  fact."  Certainly  a  careful  convey- 
ancer would  not  demand  less  than  such  a  written  renunciation, 
duly  filed  in  the  court  issuing  the  letters,  as  appeared  in  Paid- 
man  V.  Smith  and  Ely  v.  Dix.  The  actual  holding  of  the  court 
in  Ayres  v.  Clinefelter-*^^  and  Wardwell  v.  McDowell,  that  evi- 
dence other  than  record  evidence  might  be  given  of  an  affirmative 
act  of  refusal  may  go  upon  the  ground  that  the  letters  testa- 
mentaiy  in  those  cases  were  issued  by  a  justice  of  the  peace 
whose  court  was  not  a  court  of  record. 

§  620.  Survival  in  ca,se  one  of  several  executors  fails  to 
qualify:  If  the  statute  of  Hen.  VIII""'  is  construed  as  re- 
quiring an  affirmative  act  of  refusal  it  is  plain  that,  no  matter 
how  that  may  be  required  to  be  proved,  the  statute  does  not 
eovei"  the  case  w^here  there  is  a  mere  failure  or  negle^-t  to  qualify. 
Thus,  in  Clinefelter  v.  Ayres,^'  the  mere  recital  in  an  entry  by  a 
justice  of  the  peace  with  probate  powers,  made  when  letters 
issued,  that  "persons  named  in  said  will  as  co-executors  decline 
acting"  meant  no  more  than  that  they  had  failed  to  qualify  and 
hence  the  statute  of  Hen.  VI TI  did  not  apply.  The  power,  there- 
fore, was  not  properly  exercised  by  the  executor  who  did  ([ualify. 

Tlie  law  remained  in  this  condition  until  July  1st,  1872.  when 
by  an  act  of  that  year,''^  the  statute  in  force  since  1829  was 

50  Laws    1872,  p.    77,    §97    (1    A.  ss  31  111.  364,  369  et  seq. 

&  D.  R.  E.  S.  570)  ;   R  S.  1874,  ch.  s^-a  20  111.  465. 

3,  §97;  Kurd's  R.  S.   (1903)   ch.  3,  !;o  Anie,  §619. 

§  97.  57  16  111.  329.     See  also  Wardwell 

61  23  111.  448.  V.   McDowell,   31   111.   364,   369,   ac- 

52  118  111.  477.  cord.     But  quare  about  "Wisdom    v. 

53  Wardwell  v.   McDowell,   31  111.  Becker,  52  111.  342. 

364,  376;  Ely  v.  Dix,  118  111.  477.  58  Laws   1872,   p.,  77,   §97    (1   A. 

54  16  111.  329,  337.  &  D.  R.  E.  S.  570)  ;  R.  S.  1874,  ch. 

715 


§621]  FL'TURE    INTERESTS  [Cm.    XXV 

amended  (bj-  adding  the  words  italicized ),•"'•'  so  as  to  read  "where 
one  or  more  executors  shall  fail  or  refuse  to  qualify  or  depart 
this  life"  the  survivor  or  survivors  may  exercise  the  power. 
Since  this  statute  it  might  be  supposed  that  the  mere  failure  or 
neglect  to  qualify,  would  make  the  exercise  of  the  power  by  those 
who  did  qualify,  valid.'^'^ 

§  621.  No  survival  to  the  administrator  with  the  will  an- 
nexed: This  seems  always  to  have  been  the  law  of  this  state 
so  far  as  the  exercise  of  a  power  under  the  will  of  a  deceased 
resident  is  concerned.  In  Hall  v.  Irwin}''^  where  a  testator  had 
given  a  power  of  sale  to  his  executor  but  had  not  named  anybody 
to  fill  that  office,  it  was  held  that  the  administrator  with  the 
will  annexed  could  not  exercise  the  power.  The  two  dissenting 
judges  attempted  to  rest  an  opposite  conclusion  upon  the  lan- 
guage of  the  act  **-  providing  for  the  appointment  of  such  an 
administrator.  In  this  connection,  however,  the  act  did  not  do 
more  than  provide  in  what  events  the  administrator  with  tlie  will 
annexed  was  to  be  appointed,  and  that  his  duties  should  be  the 
same  as  those  of  the  executor  as  such.  A  statute  in  force  July 
1st,  1872,*'^^  and  still  operative,'"''  provided  that  "when  a  sole  or 
surviving  executor  or  administrator  dies,  without  having  fully 
administered  the  estate,  if  there  is  personal  property  not  admin- 
istered, or  are  debts  due  from  the  estate,  or  is  anything  remain- 
ing to  he  performed  in  the  execution  of  the  will,  the  county 
court,  shall  grant  letters  of  administration,  with  the  will  an- 
nexed," etc.  After  this  act  it  was  argued  from  the  words  itali- 
cized that  the  administrator  with  the  will  annexed,  might  ex- 
ercise a  power  of  sale  conferred  by  the  will.  Nevertheless,  it 
was  held  that  these  words  meant  only  "something  to  be  per- 

3,  §97;  Hurd's  E.  S.   (1903)   ch.  3,  cisions      from      other      jurisdictioiis 

§  97.  where,    under    a    statute    using    the 

59  Ely  V.  Dix,  118  111.  477,  481.  phrase    "fail    to    qualify,"    a    mere 

60  Ely  V.  Dix,  supra,  does  not  neglect  to  do  so  is  held  to  be  the 
quite  come  up  to  so  holding  because  event  contemplated. 

there  the  executor  did  affirmatively  «i  7  111.    176    (two  judges  out  of 

renounce  by  an  instrument  in  writ-  seven  dissenting). 

ing,    filed     in    Probate    Court    and  02  R.   S.  1845,  p.  540,   §  19. 

made   a    part  of   its   records.     See,  es  Laws  1871-2,  p.  77;  K.  S.  1874, 

however,  the   comments   of  our  Su-  ch.  3,  §  37. 

preme    Court    in    Wardwell    v.    Mc-  64  Kurd's  R.  S.  (1903)  ch.  3,  §  37. 

Doweil,  31  111.  364,  371,  on  the  de- 

716 


Ch.  XX \'!  I'owERs  [§622 

formed  as  executor,  and  belonging  to  tlie  offiee  proper  of  execu- 
tor, and  do  not  extend  to  anything  to  Ije  done  as  agent  or  trus- 
tee, under  a  power  given  to  sell  land."'"'' 

It  would  seem,  however,  that  since  1879  a  power  of  sale  of 
lands  in  this  state  may,  under  some  circumstanees,  be  exercised 
by  an  administrator  with  the  will  annexed  of  a  foreign  will 
where  such  an  administrator  has  been  appointed  at  the  foreign 
domieile  of  the  testator,  and  by  the  laws  of  that  domieile  an 
administrator  with  the  will  annexed  can  exercise  a  power  of 
sale.  This  must  rest  upon  an  amoidment.  by  the  aet  of  1879.''''' 
of  R.  S.  1874,  eh.  30,  sec.  34. 

It  seems  to  have  been  intimated  that  an  adniiiiistrator  with 
the  will  annexed  may  file  a  bill  to  have  a  trustee  ai)i)ointed  to 
exercise  a  power.''"  The  principal  authority  for  this  is  Siof)  r. 
McGinn}'^  On  examination,  howevei-,  tliis  ease  will  not  be  found 
to  hold  that  such  a  proceeding  is  projx'r  where  a  real  power 
to  sell  is  given.  In  that  case  the  will  actually  devised  the  leL'al 
title  of  all  the  testator's  property  to  a  trustee  upon  trust  to 
divide.  Upon  the  resignation  of  the  trustee  the  administrator 
\vith  the  will  annexed  filed  a  bill  to  have  a  new  trustee  appointed 
with  directions  to  sell.  The  decree  was  had  accordingly.  The 
only  holding  of  Hioff  v.  McGinn  was  that  this  decree  could  not 
be  attacked  collaterally  for  want  of  jurisdiction  in  a  court  of 
equity. 

Topic  2. 

Exercise  of  the  Power  Which  Did  Not  Survive  Supplied  by 

Holding  as  Constructive  Trustees  Those  Who  Take 

IN  Default  of  Appointment. 

§  622.  Where  the  power  is  in  executors  to  sell  real  estate  to 
pay  debts  or  legacies,  or  both:  Suppose  the  power  in  such 
case  does  not  survive — as  where  all  the  executors  die  and  an 
administrator  with  the  will  annexed  is  appointed.  It  is  clear 
that  the  heir  at  law  or  devisee  takes  the  legal  title  to  the  real 
estate  and  the   power  as   sucli    is   extinguished.     Nevertheless, 

csNicoll  V.  Seott,  99  111.  529,  536  fis  Laws  1879,  p.  80. 

537.     Bigelow  v.  Cady,  171  111.  229,  «•  Wenner    v.    Thornton,    98    111. 

and   Stoff    r.    MeGuin,   178   111.    46,  156;  Stoff  r.  McGinn,  178  111.  46. 

scmble,  accord.  «8  178  111.  46. 

717 


§  623]  FUTURE    INTERESTS  [Ch.    XXV 

equity,  from  au  early  period,  turned  the  devisee  or  the  heir  at 
law  into  a  constructive  trustee  for  the  creditors  and  legatees 
and  upon  a  bill  filed  by  one  of  them,  or  by  the  administrator 
with  the  will  annexed,  the  trust  could  be  enforced  and  the  land 
sold  to  pay  debts  and  legaeies.«»  The  reason  for  this  is  plain. 
The  devisee  or  heir  at  law  was  in  express  terms  postponed  to 
the  creditors  and  legatees.  There  was  no  discretion  to  exercise 
the  power  or  not  as  the  executor  pleased,  with  a  gift  in  default 
of  appointment  which  would  give  the  party  taking  in  default 
of  appointment  an  equal  standing  with  the  objects  of  the  power. 
In  the  case  of  the  power  to  sell  to  pay  debts  and  legacies  the 
objects  of  the  power  were  preferred  to  the  heir  or  devisee.  The 
executors  ought  to  have  sold  and  were  under  a  fiduciary  obliga-  ■ 
tion  to  sell  to  pay  the  debts  and  legacies.  The  heir  at  law  or 
devisee  would  therefore  take,  if  at  all,  as  a  result  of  the  failure 
by  the  executors  to  perform  their  fiduciary  obligation.  Receiv- 
ing a  title  in  that  way  was  unfair  and  inequitable  and  resulted 
in  an  unjust  enrichment.  Upon  that  ground  the  heir  or  devisee 
was  turned  into  a  constructive  trustee  in  favor  of  the  legatees 
and  creditors. 

§  623.  Suppose  the  power  is  given  to  executors  to  sell  real 
estate  and  distribute  the  proceeds  to  those  who  would  take 
the  real  estate  if  it  were  not  sold:  This  is  a  power  in  aid  of 
the  administration  of  the  estate  merely.  There  is  no  ground 
upon  which  to  raise  any  constructive  trust. 

Topic  3. 

Powders  in  Executors  and  Trustees  Construed  as  Exercis- 
able BY  Whoever  for  the  Time  Being  Holds  the  Office. 

§  624.    Distinction  between  real  and  spurious  powers."*^    A 

real  power  is  exercised  when  the  appointee,  as  a  result  of  the 
appointment  takes  a  title,  not  from  the  donee  of  the  power,  but 
fi'om  the  donor.'i     ^  j.pjjl  power  operates  to  permit  the  creation 

•i»  Yates  V.   Compton,   2   P.   Wms.  represented  those  who  held  the  ben- 

308     (1725);    Co.    Lit.    113a,    Har-  ficial  interests). 
graves'  Note,  Kales'  Cases  on  Fu-  7 1  Drake  v.   Steele,  242   111.   301; 

ture  Interests,  713,  note  5.  Emmerson   v.    Merritt,    249   111.   538 

70  Smith  V.   Hunter,  241   111.   514  (executor  with  a  power  merely  and 

(question   whether  executor   with    a  no  title,  could  not  maintain  a  bill  to 

power,  who   was  a  party  to  a  suit,  quiet  title). 

718 


Ch.  XXV]  I'owEHs  [§  62G 

by  appointment  of  a  future  interest,  as  if  it  were  originally 
created  by-  the  donor  of  the  power  in  the  instrument  creating 
the  power.  The  donee  of  the  power  may  have  a  title  in  him- 
self. It  may  even  be  a  fee  simple.  Usually,  however,  the  donee 
has  no  title  co-extensive  with  that  which  he  has  power  to  appoint. 
Such  real  powers  are  to  be  distinguished  from  the  so-called 
or  spurious  power  which  a  trustee  is  given  to  deal  with  the 
trust  estate  of  which  he  holds  the  fee  or  absolute  interest.  When 
the  trustee  exercises  the  so-called  or  spurious  power  to  transfer 
the  trust  estate  he  transfers  the  legal  title  which  he  has.  The 
existence  of  the  expressed  power  merely  prevents  the  transfer 
from  being  in  breach  of  ti'ust  and  protects  the  purchaser  or 
transferee  from  all  claims  of  the  cestui.  This  so-called  pov*er  is 
not  a  true  power  at  all.  Yet,  as  a  matter  of  practical  con- 
venience, the  survival  of  both  real  and  spurious  powers  will 
be  dealt  with  in  the  subsequent  sections. 

§625.  Problem  wholly  one  of  expressed  intent:  Where  a 
real  or  a  spurious  power  is  created  in  A  and  B  individually, 
or  as  executors  or  as  trustees,  and  one  dies  or  refuses  to  act, 
or  resigns,  can  the  power  be  exercised  by  the  other?  There 
can  be  no  doubt  but  that  the  donor  of  the  power  or  the  creator 
of  the  trust  may  restrict  the  exercise  of  the  power  to  the  par- 
ticular donees  or  trustees  named,  or  he  may  extend  the  power 
to  the  donees  and  the  survivor  of  them,  and  the  heirs  of  the 
last  survivor,  or  to  the  trustee  or  trustees  for  the  time  being. 
The  real  question  in  every  case  is  Avhat  has  the  donor  of  the 
power  or  the  creator  of  the  trust  estate  done?  How  has  he  by 
his  express  language  designated  who  may  ex(n'cise  the  jiower? 

No  difficulty  would  arise  if  the  instrument  creating  the  power 
or  the  trust  contained  explicit  language'  upon  which  this  ques- 
tion might  be  answered.  The  difficulty  which  arises  is  a  com- 
mon one,  because  instruments  do  not  make  the  answer  to  the 
above  question  explicit.  The  courts,  therefore,  have  been  forced 
to  make  decisions  on  the  eifect  of  incomplete  language,  and 
these,  constantly  followed,  have  developed  certain  rules  of  con- 
struction. 

§  626.  Cases  where  the  power  is  given  to  trustees  who  take 
an  absolute  interest  in  the  trust  estate :  It  seems  clearly  settled 
that  when  property  is  conveyed  absolutely  to  trustees  upon 
certain  trusts  and  then  powers  are  given  to  the  trustees  which 

719 


^  626 J  FUTURE    INTERESTS  [Ch.    XXV 

are  in  aid  of  the  administration  of  the  estate  while  the  trust 
continues  (most  usually  a  power  to  sell  real  estate),  the  powers 
are  regarded  as  expressed  to  be  in  those  who  are  trustees  for 
the  time  being."-  Little  attention,  it  is  believed,  is  now  paid 
to  such  ditferences  in  phraseology^  as  "my  trustees,"  "my  said 
trustees,"  "A  and  B,  my  trustees,"  or  "my  trustees,  A  and 
B,"  or  to  the  fact  that,  where  the  power  is  given  to  trustees 
in  the  plural  number,  the  one  trustee  for  the  time  being  is  at- 
tempting to  exercise  the  povv^er.  The  reliance  of  the  creator 
of  the  trusts  upon  the  individual  rather  than  the  holder  of  the 
office  for  the  time  being  must  be  explicitly  expressed  to  receive 
certain  recognition  in  the  courts. 

It  is  sometimes  said  that  the  power  is  an  incident  to  the  office. 
This  means  no  more  than  that  there  is  an  expressed  intent  that 
whoever  is  trustee  for  the  time  being  shall  have  the  power.  It 
states  a  conclusion  and  not  a  reason.  Sometimes  it  is  said  that 
the  power  is  coupled  with  an  interest  because  the  trustees  have 
the  fee  or  absolute  interest  in  the  trust  estate.  But  this  is  a 
vacuous  way  of  calling  attention  to  the  fact  that  the  trustees' 
taking  the  fee  or  absolute  interest  upon  trust  furnishes  a  ra- 
tional basis  for  finding  an  expressed  iutejit  that  the  trustee 
for  the  time  being  shall  have  the  power.  But  the  fact  that  the 
trustees  take  the  fee  or  absolute  interest  is  not  even,  it  is  be- 
lieved, the  principal  element  in  determining  that  the  power 
survives.  The  additional  elements  practically  always  present 
where  the  trustees  take  the  fee  or  the  absolute  interest  upon 
trust, — viz.:  that  there  are  trusts  to  be  administered  and  that 
the  power  is  a  convenient  aid  to  the  administration  of  the  trust 
estate  so  long  as  the  trusts  last,— are  the  essential  elements 
making  for  the  construction  that  the  power  is  conferred  upon 
any  trustee  or  trustees  for  the  time  being. 

Of  course  the  result,  required  by  the  rule,  yields  to  a  con- 
text indicating  that  the  power  is  to  be  exercised  only  by  the 

-2Lanet).  Debenham,!!  Harel88;  Golder    v.    Brcssler,    105    111.    419; 

In    re   Bacon,    f  19071    1    Ch.    475;  Wallaee    v.    Foxwell,    250    111.    616, 

Faulkner  v.  Lowe,  2  Exch.  581,  594;  623;    Gray  v.   Lynch,  8  Gill.    (Md) 

Hind    V.   Poole,    1    Kay   &   J.    383 ;  403 ;  Gutman  v.  Buckler,  69  Md.  7 ; 

Eaton  V.  Smith,  2  Beav.  236;  Reid  v.  Bradford  v.  Monks,  132  Mass.  405; 

Eeid,  8   Jur.   N.   S.   499;    Attorney  Putnam    v.    Fisher,    30    Me.    523; 

General  v.  Gleg,  1  Atk.  356;  /n  re  Gaines  v.  Fender,  82  Mo.  497,  506. 
Cookes'   Contract,   4   Ch.   Div.  454; 

720 


Ch.  XXV]  POWERS  [§  626 

individuals  named  as  trustees.  Nice  considerations  are  involved 
in  determining  whether  a  special  context  is  sufficient  to  acliieve 
this  result. 

It  has  been  held  that  it  made  no  difference  that  the  instru- 
ment creating  the  trust  provided  for  the  filling  of  vacancies 
among  the  trustees  and  that  the  new  trustees  were  given  all 
the  powers  of  the  old  trustees.  In  such  case,  therefore,  the  sole 
surviving  trustee  could  exercise  the  power  of  sale  though  the 
vacancies  had  not  been  filled.'^'^ 

Suppose  the  power  in  the  trustees  is  to  appoint  in  the  dis- 
cretion of  the  trustees,  or  distribute  in  a  manner  different  from 
that  prescribed  by  the  testator  or  settlor.  Here  the  nature  of 
the  power  at  once  raises  an  inference  that  it  was  to  be  exercised 
only  by  the  particular  trustees  named.  The  power  to  alter  a 
distribution  is  one  which  would  naturally  be  entrusted  to  par- 
ticular individuals,  and  only  to  the  discretion  of  all  the  indi- 
viduals named.  In  a  number  of  instances  of  this  sort,  courts 
have  held  the  power,  though  given  to  the  trustees  generally, 
was  exercisable  only  by  all  of  those  named,  so  that  upon  the 
death  of  one  the  power  could  not  be  exercised.'^  But  even 
in  this  class  of  cases  no  dogmatic  rule  applies,  and  where  the 
powder  was  given  to  my  "said  trustees"  to  sell  and  apply  the 
principal  for  the  wife,  who  took  a  life  estate,  it  was  held  that 
it  could  be  exercised  by  any  trustee  for  the  time  beiug.'^ 

"3  Belmont   v.  O'Brien,   12   N.  Y.  divesting    the    interest    of    another 

394;  Parker  v.  Sears,  117  Mass.  513.  who  would  otherwise  have  it). 

But  see   O'Brien   v.   Battle,   98   Ga.  In   Maryland,   where    the   cy  pres 

766.  doctrine    regarding    charitable   gifts 

7*  Cole  V.  Wade,  16  Ves.  Jr.  27  does  not  obtain  (Gray,  Kule  against 
(devise  to  relations  in  such  portions  Perpetuities,  §  611),  a  power  to  trus- 
as  executors  should  determine) ;  tees  to  select  charities  as  beneficia- 
Hadley  v.  Hadley,  1-17  Ind.  423  (I  ries  is  in  fact  a  power  to  divert  the 
will  that  A,  B  and  C  take  charge  as  estate  from  the  next  of  kin  or  the 
trustees  of  my  real  estate  and  devote  heir  at  law  or  the  residuary  devisee, 
the  same  if  thought  practicable  to  to  charity.  In  accordance  with  the 
the  creation  and  maintenance  of  an  above  cases  the  power  was,  there- 
institution,  etc.,  if  that  deemed  fore,  construed  as  personal  to  the 
practicable  by  said  trustees.  Then  trustees  named:  Gambell  v.  Trippe, 
gift   over.) ;    Dillard    v.   Dillard,   97  75  Md.  252. 

Va.  434  (trustees  had  power  in  their  '^  In  re  Smith,  [1904]   1  Ch.  130. 

discretion  to  divert  gift  in  fee  or  for  See  also  Delany  r.  Delany,  15  L.  R. 

life  to  one  person  and  to  that  extent  Ir.  5.1. 
Kales  Fut.  Int. — 46                          ^21 


§  626]  FUTURE    INTERESTS  [ClI.    XXV 

Suppose  that  the  power  is  given  to  trustees  to  use  their  dis- 
cretion in  dividing  among  charities.  The  trust  estate  is  de- 
voted to  charity,  so  that  charity  must  liave  it.  Hence  the  ex- 
ercise of  tlie  power  does  not  deprive  any  beneticiary.  It  merely 
designates  the  particular  beneficiary.  If  tlie  trustees  named  do 
not  exercise  the  power  the  court  itself  will  do  so.  In  short,  since 
the  power  is  to  be  exercised  in  any  event,  it  may  fairly  be  argued 
that  the  power  is  to  be  exercised  by  any  trustee  for  the  time 
being.'*^ 

Sometimes  a  real  power  is  given  to  be  exercised  only  with 
the  consent  of  the  "trustees"  or  the  "undersigned  trustees." 
Again,  it  is  all  a  matter  of  construction  as  to  whether  the  assent 
of  the  particular  trustees  named  is  required,  or  whether  the 
assent  of  the  trustees  for  the  time  being  is  enough.  Much  de- 
pends upon  the  subject  matter  of  the  power  and  the  special 
context.  There  are  no  precise  rules.  The  English  equity  judges 
seem  to  have  adopted  an  attitude  strongly  favoring  a  construc- 
tion which  requires  the  assent  of  the  trustee  or  trustees  for  the 
time  being. '^^ 

The  position  of  our  Supreme  Court  in  Pennsylvania  v. 
Bauerle  '^  is  worthy  of  special  notice.  There  the  power  of  sale 
was  given  to  four  trustees.  All  qualified  in  Pennsylvania,  the 
domicile  of  the  testator.  One  trustee  was,  however,  a  Penn- 
sylvania corporation,  which  did  not  comply  with  the  laws  of 
this  state  and  therefore  could  not,  under  the  laws  of  this  state, 
act  in  the  sale  of  Illinois  land  with  the  other  trustees.  Our 
Supreme  Court  seems  to  have  insisted  that  the  Pennsylvania 
corporation,  by  reason  of  its  attempted  acceptance  of  the  trusts, 
was  a  trustee  of  the  Illinois  lands,  so  that  it  must  join  in  a  deed 
conveying  them,  and  at  the  same  time  to  have  held  that  bc- 

■7«  Crawford    v.    Forshaw,    L.    R.  respect   to   gifts   to  charities   is   not 

[]891]  2  Ch.  261  (power  in  "execu-  in  force:    Oambell  v.  Trippe,  75  Md. 

tor  herein  named"  to  divide  among  252. 

charities)  ;  Lorings  v.  Marsh,  6  Wall  ^7  Byam    v.    Byam,    19    Beav.    58 

(U.   S.)    357    (power  to   trustees   or  (power   in   tenant   for   life   to   with- 

successors) ;    Murphy 's   Estate,    184  draw  fund  from  the  settlement  with 

Pa.   St.   310    (power   in   "executors  the     assent     of     the    "undersigned 

or  successors").  trustees"  approved  in  In  re  Smith, 

The    reasoning    of    the    text,    of  [1904]   1  Ch.  139). 

course,  can  have  no  application  in  a  ^s  143  m.  459. 
state  where  the  cy  pres  doctrine  with 

722 


Ch.  XXV]  POWERS  [§628 

cause  the  Pennsylvania  corporation  had  not  complied  with  tiic 
Illinois  statute  it  had  not  qualified  as  a  trustee  of  the  Illinois 
lands,  and  so  could  not  join  in  tlie  deed  to  the  purchaser.  Hence, 
in  a  bill  for  specific  performance  by  the  trustees  against  tlie 
purchaser,  the  purchaser's  defense  was  (•omi)lpte. 

§  627.  Cases  where  the  beneficial  interest  is  in  A  and  where 
B  and  C  have  power  to  divert  the  beneficial  interest  by  ap- 
pointment to  D:  It  is  clear  that  no  intent  is  expressed  that  the 
survivor  of  B  and  C  can  exercise  tiie  power.  Furthermore,  it 
is  proper  that  A's  beneficial  interest,  which  is  vested,  should 
not  be  divested  unless  the  power  was  exercised  strictly  as  in- 
dicated. In  support  of  a  rule  that  the  power,  in  the  case  put, 
did  not  survive,  it  has  been  said  that  a  naked  or  bare  power 
would  not  survive.''-*  The  phrase  is  somewhat  unfortunate,  as 
it  tends  to  indicate  a  hard  and  fast  rule  and  also  causes  the 
discussion  to  turn  upon  whether  a  power  is  a  naked  or  bare 
power,  or  a  power  coupled  with  an  interest.  These  phrases  con- 
ceal rather  than  aid  the  real  iniiuiry.  The  discussion  should 
always  turn  upon  the  essential  elements  of  the  situation,  which 
furnish  the  rational  ground  for  an  expressed  intent. 

§  628.  Cases  where  a  real  power  is  given  to  executors  to 
sell  to  pay  debts  or  legacies  or  both:  This  is  a  real  power, 
because  the  executors  have  no  estate  in  the  land.  It  is  like  a 
bare  or  naked  power  in  that  when  the  executors  exercise  the 
power  they  divest  the  legal  title  of  the  heir  or  residuary  de- 
visee in  favor  of  the  creditors  or  legatees.  At  common  law 
neither  had  a  right  to  come  down  on  the  real  estate  in  the  ab- 
sence of  a  specific  charge  and  to-day  it  is  generally  true  that 
the  legatees  have  no  right  to  satisfaction  out  of  the  realty  unless 
the  legacies  are  charged  upon  the  realty.  On  the  other  hand, 
the  power  to  sell  to  pay  debts  or  legacies  in  eiiuity  charges  the 
land  with  their  payment,  and  equity,  in  any  event,  would  decree 
the  land  sold  to  satisfy  the  debts  or  legacies,  so  that  the  land 
is  in  fact  lost  to  the  heir  or  residuary  devisee  if  it  is  necessai-y 
to  pay  debts  or  legacies.     Hence,  there  is  no  reason  for  a  strict 

79Sugden  on  Powers,  3d  Am.  ed.  Dyer   (part  II)    219a;  Montefiore  v. 

205,    first    rule;     Hargrave's    Note,  Browne,  7  H.  L.  C.  241;  Hawkins  r. 

Co.   Lit.    113a;    Farwell   on   Powers,  Kemp,  3  East  410;   Glover   r.   Still- 

2nd    ed.    454;    Atwaters   v.    Birt,    2  son,  56  Conn.  31(5   (power  of  sale  in 

Cro.    Eliz.    856;    Danne    v.    Annas.  life  tenants). 

723 


§  G28]  FUTURE    INTERESTS  [CH.    XXV 

adherence  to  the  laiiguage  used  in  order  to  prevent  the  divest- 
ing of  the  estate  of  the  heir  or  residuary  devisee.  Further- 
more, the  executor,  though  having  no  legal  estate  upon  trust, 
has  this  power  in  trust  for  the  creditors  and  legatees  and  that 
power  is  clearly  in  aid  of  the  administration  of  the  estate  and 
the  discharge  of  the  executor's  trust.  Hence,  the  essential  feat- 
ures of  the  case  where  the  trustee  has  the  absolute  interest,  with 
£,  power  in  aid  of  administration  of  the  trust,  are  in  fact  present. 
Hence,  the  power  in  the  case  put  is  construed  as  being  expressly 
limited  to  those  persons  who  may  for  the  time  being  be  exe- 
cutors. If  some  resign  or  die  or  fail  to  qualify,  the  remaining 
ones  may,  even  apart  from  statute,  act.»"  The  power  is  some- 
times said  to  be  coupled  with  an  interest  or  to  be  a  power  in 
trust,  or  to  attach  to  the  office  and  not  the  person.  Whatever 
phrase  be  used  simply  means  that  the  predominant  character- 
istics of  the  situation  and  context  are  sufficient  to  warrant  the 
court  in  reaching  a  conclusion  that  there  is  an  expressed  intent 
that  the  executor  for  the  time  being  may  exercise  the  power. 
There  is  a  distinct  inaccuracy  in  saying  that  the  power  attaches 
to  the  office  of  executor.  That  statement,  if  pressed  to  its  logical 
conclusion,  would  enable  the  administrator  with  the  will  an- 
nexed to  exercise  the  power,  for  he  succeeds  to  the  office  of  the 
executor.  It  has  been  generally  held  that  in  the  absence  of 
statute,  the  administrator  with  the  will  annexed,  cannot  ex- 
ercise the  power,si  ]j^^i  ^\^^i  ^  ^q\q  ^^yst  be  directed  by  a  decree 
of  a  court  of  chancery.  These  cases  make  it  clear  that  the 
courts  go  no  farther  than  to  hold  that  the  language  used  gives 
power  only  to  the  persons  named  as  executors  who  may  be 
executors  for  the  time  being  and  to  no  others. 

80  Houell  V.  Barnes,  Cro.  Car.  382 ;  White    v.    Taylor,    1    Yeates    (Pa.) 

Brassey  v.  Chalmers,  4  De  G.  M.  &  422 ;  Bredenburg  v.  Bardin,  36  S.  C. 

G.  528,  536,  reversing  16  Beav.  223,  197;  Dick  v.  Harby,  48  S.  C.  516; 

231;    Forbes   v.    Peacock,   11    Mees.  Fitzgerald    v.    Standish,    102    Tenn. 

&  W.  630;  Peter  v.  Beverly,  10  Pet.  383;  Robertson  v.  Gaines,  2  Humph. 

(U.  S.)  532,  564;  Osgood  v.  Frank-  (Tenn.)  367;  Davis  v.  Christian,  15 

lin,   2   Johns   Ch.   1;    14   Johns   527  Gratt.  (Va.)  11,38;  Wolfe  i;.  Hinesj^ 

(N.  Y.) ;  Wardwell  v.  McDowell,  31  93  Ga.  329. 

111.    364;    Warden    v.    Richards,    11  si  Conklin  v.  Egerton's  Adm.,  21 

Gray  (Mass.)  277;  Muldrow's  Heirs  Wend.  (N.  Y.)  430;  Yates  v.  Comp- 

V.  Fox's  Heirs,  2  Dana   (Ky.)    74;  ton,    2    P.    Wms.    308;    Compton   v. 

Weimar  v.  Fath,  43  N.  J.  L.  1;  Ber-  McMahan,  19  Mo.  App.  494;   Tain- 

rien    v.    Berrien,   4   N.    J.    Eq.    37;  ter  v.  Clark,  13  Mete.   (Mass.)  220. 

724 


Ch.  XXV]  I'OWERS  [§630 

Where  tlie  power  is  in  the  executors  to  sell  to  pay  debts  or 
legacies  it  would  seem  that  it  can  make  no  difference  that  some 
discretion  is  imposed  upon  the  executors,  provided  the  language 
charges  debts  and  legacies  upon  the  land.  Nor  does  it  make 
any  difference  that  the  power  is  given  to  "my  executors"  or 
to  "A  and  B,  my  executors,"  or  to  "my  executors,  A  and  B." 
or  to  "my  said  executors,"  referring  to  A  and  B,  already  ap- 
pointed executors,  or  to  "my  executors  hereinafter  named." 
Nor  does  it  make  any  difference  that  of  several  executors  orig- 
inally appointed  only  one  is  executor  for  the  time  bcinfr. 

§  629.  Cases  where  the  power  in  executors  is  one  not  only 
to  sell  to  pay  debts  or  legacies,  or  both,  but  also  to  sell  for 
the  convenience  of  the  estate  and  hold  the  proceeds  for  the  one 
entitled  to  the  land:  It  would  seem  that  if  there  is  no  sep- 
arating of  the  two  purposes  of  -  the  power  so  that  one  formula 
of  language  is  used  to  cover  both  situations,  then,  since  the 
power  must  be  construed  to  be  in  the  executors  for  the  time 
being  for  the  payment  of  debts  and  legacies,  it  must  be  con- 
strued to  be  in  the  executors  for  the  time  being  for  all  pur- 
poses. The  same  language  cannot  well  be  given  different  mean- 
ings depending  upon  whether  the  same  power  is  used  for  one 
purpose  or  another.**- 

§  630.  Cases  where  there  is  a  power  in  executors  to  sell,  not, 
however,  to  pay  debts  or  legacies,  but  to  hold  the  proceeds  for 
the  benefit  of  those  entitled  to  the  land  in  place  of  the  land : 
Here  the  power  is  a  real  power,  for  its  exercise  divests  the  title 
of  the  heir  or  devisee.  It  does  not,  however,  take  away  any 
beneficial  ownership  from  the  heir  or  devisee  and  transfer  it 
to  another.  It  only  changes  the  beneficial  ownership  of  the 
heir  or  devisee  from  a  legal  interest  in  the  land  to  an  equitable 
interest  in  the  proceeds.  Hence,  there  is  no  reason  for  a  strict 
adherence  to  any  literal  meaning  of  the  language  used  in  order 
to  prevent  the  divesting  of  a  vested  interest.  Clearly  the  power 
is  like  a  power  in  a  trustee  who  has  the  legal  estate.  It  operates 
for  the  convenience  of  the  estate  by  vesting  in  some  person  of 
trusted  discretion  an  opportunity  to  deal  with  the  legal  title. 
This  is  especially  so  where  the  legal  title  is  outstanding  in  an  in- 
fant.    The  mere  fact  that  the  executor  has  no  legal  title  in  fee 

82  Zebach  v.  Smith,  3  Binney  (Pa.) 
69. 

725 


§631] 


FL'TURE    INTERESTS 


Ch.   XXY 


does  not  militate  against  the  inference  that  the  power  is  given  to 
those  who  may,  for  the  time  being,  be  executor  or  executors. 
Hence,  the  power  given  to  the  executors  should  be  construed 
to  be  to  such  as  may,  for  the  time  being,  be  acting.  There  is 
some  authority  in  favor  of  this  position.^ ^  But  for  the  most 
part  the  cases  seem  to  be  against  it.  The  courts  refuse  to  ex- 
tend the  rule  that  the  power  in  executors  survives  beyond  the 
case  where  the  power  is  to  pay  debts  or  legacies,  or  both.^^ 
This  is  especially  true  where  the  language  creating  the  power 
reposes  a  personal  confidence  and  discretion  in  the  executors. ^^ 
§  631.  Cases  where  the  executors  have  a  discretionary  power 
to  sell  and  apply  the  proceeds  in  a  way  which  changes  the 
beneficial  interests:  Here  the  exercise  of  the  power  operates 
to  divest  a  beneficial  interest  already  vested.  Hence,  the  power 
is  like  the  bare  or  naked  power  dealt  with  ante,  §  627,  and  the 
tendency  ought  to  be  to  adopt  a  construction  which  would  not 
permit  a  surviving  executor  to  exercise  the  power.^*' 


83  Farrar  v.  McCue,  89  N.  Y.  139 ; 
Dick  V.  Harby,  48  S.  C.  516.  See 
also  Parrott  v.  Edmonson,  64  Ga. 
332;  Gould  v.  Mather,  104  Mass. 
283. 

8*  Clinef elter  v.  Ayers,  16  111.  329 ; 
Woolridge's  Heirs  v.  Watkins,  3 
Bibb.  (Ky.)  349;  Shelton  v.  Homer, 
5  Mete.  (Mass.)  462;  Chambers  v. 
Tulane,  9  N.  J.  Eq.  146,  156;  Clay 
V.  Hart,  7  Dana  (Ky.)  1;  Tarver  ■;;. 
Haines,  55  Ala.  503;  Robinson  v. 
Allison,  U  Ala.  254. 

85  Tarver  v.  Haines,  55  Ala.  503; 
Chambers  v.  Tulane,  9  N.  J.  Eq. 
146;  Clay  v.  Hart,  7  Dana  (Ky.)  1; 
Robinson  v.  Allison,  74  Ala.  254. 

In  Wardwell  v.  McDowell,  31  111. 
364,  it  was  evidently  argued  against 
the  survival  of  the  power  under  the 
Statute  of  £1  Hen.  VIII,  Ch.  4,  that 
a  distinction  must  be  taken  between 
a  direction  to  sell  and  a  discretion 
to  sell.  It  was  evidently  argued 
that  the  statute  of  Henry  VIII  did 
not  apply  where  there  was  a  discre- 


tionary power  to  sell,  but  only  ap- 
plied where  there  was  a  direction 
to  executors  to  sell.  This  the  court 
very  properly  repudiated.  (See  p. 
376  of  opinion.)  The  statute  of 
Henry  VIII  made  no  such  distinc- 
tion and  clearly  should  not  be  held 
to  make  such  a  distinction.  But  that 
is  not  holding  that  apart  from  the 
statute  such  a  distinction' was  of  no 
consequence.  Apart  from  statute 
the  rule  of  the  common  law  was  that 
even  where  the  executors  were  di- 
rected to  sell  and  given  no  discretion 
as  to  whether  they  would  sell  or  not, 
the  power  would  not  survive.  That 
was  precisely  the  case  in  Clinefelter 
V.  Ayers,  16  111.  329.  A  fortiori, 
where  the  executors  were  given  a  dis- 
cretion to  sell  and  there  was  no  ques- 
tion of  the  application  of  any  stat- 
ute the  argument  was  all  the  strong- 
er that  the  power  could  not  survive. 
8c  This  was  the  attitude  taken  in 
the  following  cases:  Ferre  v.  Ameri- 
can Board,  53  Vt.   162;   Madden   v. 


726 


Cir.  XXV]  POWERS  f§  633 

§  632.     Suppose  that  trustees  have  only  a  term  for  years 
or  a  life  estate  and  a  power  to  sell  the  fee  and  hold  the  pro- 
ceeds for  the  devisee  of  the  legal  estate  in  fee  after  the  term 
cr  the  life  estate:     Clearly  the  case  is  like  tfiat  dealt  with 
ante,   §  626,  except   that  the  trustees  do  not  have  the  fee  or 
any  absolute  interest  in  the  trust  estate.    On  the  other  hand,  the 
case  is  also  like  that  dealt  with  ante,  §  630,  except  that  the  power 
is  in  the  trustees  who  have  an  estate  for  years  or  for  life.    Even 
a.ssuming  that  the  position  of  the  majority  of  courts  as  to  the 
case  put  ante,  §  630,  that  the  power  does  not  survive,  is  to  be 
adhered   to,    it   would   seem   safe  to   predict   tluit   today   courts 
would  hold  on  analogy  to  the  result  reached  in  the  case  put  ante, 
§  626,  that  the  poAver  would  survive.^"     It  would  be  incongru- 
ous to  make  a  distinction  between  the  case  where  the  trustee  has 
an  absolute  estate  and  where  he  has  only  a  life  estate  or  term 
for  years.     The  latter  fact  only  makes  the  difference  between  a 
real  and  a  spurious  power.     But  that  difference  alone  furni.shes 
no  logical  ground  for  a  difference  as  to  the  meaning  of  the 
te-stator  or  settlor  in  a  particular  case.     The  result  reached  by 
a  majority  of  the  courts  with  regard  to  the  case  put  ante,  §  630, 
rests  at  the  present  day  rather  upon  authority  than  upon  sound 
reasoning  applicable  to  the  situation,  and  hence  should  not  be 
extended. 

§  633.  Treatment  of  the  subject  of  survival  of  powers  by 
distinguished  English  writers:  Distinguished  writers  in  Eng- 
land have  tended  to  make  much  turn  upon  the  form  of  the 
words.  Is  the  power  given  to  the  "executors,"  or  to  "A  and 
B,  my  executors, "  or  to  "  A  and  B  ? "  In  the  first  case  the  power 
is  said  to  survive."*^  In  the  uext  it  is  said  to  be  doubtful,^^  or 
to  depciul   upon   the   intention   in   the   particular   case.'"^     Sug- 

Maddcn,  23  L.  R.  Ir.  167.     Compare  v.   Egerton's   Adni.,   21    Wond.   -iJO, 

cases  referred  to  ante,  §  627.  442,  443. 

Observe  however,   that  where  the  st  See  Gould  v.  Mather,  104  Mass. 

power   is   created   by   implication   it  283;    Parrott  v.  Edmondson,  64  Ga. 

extends  to  the  survivor  of  two  cxecu-  332. 

tors:    Chandler    v.   Rider,   102   Mass.  «»  Sugden  on  Powers,  8th  ed.  128, 

268.  Rule  3;  Farwell  on  Powers,  2nd  ed. 

Observe     the     general     rule     that  457. 

where  the  power  is  given  executors  89  Sugden,  on  Powers,  8th  ed.  128, 

by   implication  it  survives:    Farwell  Rule  4. 

on   Powers,  2nd  cd.  p.  461;   Conklin  no  Farwell  on  Powers,  2ud  ed.  4ri7. 

727 


§  634]  FUTURE    INTERESTS  [Ch,    XXV 

den  makes  the  difference  between  a  power  given  to  "execu- 
tors" and  a  power  given  to  "A  and  B,  my  executors."  The 
former,  he  says,  will  survive;  in  the  latter  case  it  is  doubt- 
ful.9^  Farwell  puts  it  a  little  differently.  He  agrees  that  the 
power  in  the  former  case  survives,  but  in  the  latter  he  says  it 
is  a  question  of  intent  whether  the  power  is  annexed  to  the  per- 
son or  to  the  office.^^  The  cases  taken  as  a  whole  indicate  that 
the  courts  pay  very  little,  if  any,  attention  to  the  form  of  tlie 
language  used,  upon  M'hich  Sugden  and  Farwell  rest  so  heavily. 
They  show,  also,  that  the  courts  obtain  their  results  by  the  con- 
sideration of  the  special  context  and  certain  circumstances, 
which  furnish  a  rational  basis  for  an  inference  in  favor  of  the 
power  not  surviving,  or  in  favor  of  its  surviving.  The  distinc- 
tions made  in  the  foregoing  sections  not  only  reconcile  the  cases, 
but,  it  is  believed,  do  so  upon  more  solid  and  rational  grounds 
than  could  be  found  in  the  mere  form  of  words  or  derived  from 
such  illusive  phrases  as  power  coupled  with  an  interest,  or 
power  ratione  officii. 

TITLE   IV. 
POWERS  IN  TRUST  AND  GIFTS  IN  DEFAULT  OF  APPOINTMENT. 

§  634.  The  problem  stated :  It  not  infrequently  happens 
that  in  creating  a  special  power  it  is  not  precisely  stated,  or  not 
stated  at  all,  who  are  to  take  in  default  of  appointment.  The 
question  then  arises  whether  the  objects  of  the  power  can  take 
in  that  event. 

§  635.  Where  there  is  a  devise  to  trustees  upon  trust  to 
transfer  to  certain  persons,  with  power  in  the  trustees  to  make 
a  selection  or  exercise  a  power  to  appoint  among  the  bene- 
ficiaries: In  such  a  case  there  is  created  a  beneficial  interest 
with  the  power  added.  There  is  in  fact  an  express  gift  in  de- 
fault of  appointment.  Instead  of  being  introduced  with  the 
usual  formula,  "in  default  of  appointment,"  the  form  of  it  con- 
sists in  a  direct  devise  to  certain  objects  and  then  the  creation 
of  a  power  in  some  person  or  persons  to  appoint  among  these  ob- 
jects. In  such  cases  it  is  regularly  held  that  in  default  of  ap- 
pointment the  objects  of  the  trust  are  entitled.^^ 

The  troublesome  question  in  this  class  of  cases  is  whether  the 

91  Sugden  on  Powers,  8th  ed.  128,  »-'  Famell  on  Powers,  2nd  ed.  457. 

Rules  ;i  and  4.  ■'■^Dojley    v.    Attorney-General,   4 

728 


Ch.  XXV]  POWERS  [H36 

beneficiaries  liviiif!:  at  the  testator's  death  take  or  only  tliose  who 
survive  some  subsequent  period.  If  the  appointment  may  be 
made  by  the  trustee  at  any  time,  there  is  an  inference  that  those 
in  esse  at  the  testator's  death  are  entitled  and  that  there  is  no 
contingency  of  survivorship.^'*  If  the  power  is  only  exercisable 
by  the  trustees  at  the  death  of  the  life  tenant  and  the  subject 
matter  of  the  gift  is  personal  property,  it  has  been  held  that 
a  prima  facie  inference  arises  that  only  those  are  to  take  who 
survive  the  life  tenant.^''  So  where  the  gift  is  of  personalty  to 
a  class  and  is  contained  only  in  the  dircL-tion  to  divide  in  fuiuro, 
in  the  event  of  tiie  first  taker  dying  without  leaving  issue, 
the  direct  gift  has  been  held  to  be  to  those  only  who  survive 
that  event. ^'^ 

§  636.  Where  there  is  no  gift  to  trustees  but  only  a  real 
power,  there  may  still  be  sufficient  language  from  which  the 
court  can  properly  find  a  direct  gift  to  the  objects  of  the 
power:  There  are  a  number  of  examples  of  this  sort  among 
the  English  cases.'*"  The  objects  of  the  direct  gift,  of  course, 
are  entitled  in  default  of  appointment.  Again,  however,  the 
question  arises  whether  they  must  survive  the  period  of  ap- 
pointment. Again,  if  the  power  is  to  appoint  in  the  life  of 
the  life  tenant  or  at  his  death,  a  prima  facie  inference  arises 
that  all  in  esse  at  the  testator's  death  are  entitled.^^  If  the 
poAver  is  to  appoint  only  at  the  life  tenant's  death  and  person- 
alty is  involved,  it  may  be  assumed  that  an  inference  would 
arise  that  only  those  objects  of  the  gift  take  who  survive  the 
life  tenant's  death.^^  This,  however,  rests  upon  the  rules,  relat- 
ing to  the  vesting  of  legacies.^  Where  legal  or  equitable  in- 
terests in  land  are  involved  the  refusal  of  the  common  law  courts 

Vin.  Abr.  485,  pi.  16  (1735);  Hard-  445    (1804);   Faulkner  t'.   Wynford, 

ing    V.    Glyn,    1    Atk.    469    (1739);  15  L.  J.  N.  S.  8   (1845);   Burrough 

Brown  v.  Higgs,  4  Ves.  708  (1799),  v.  Philcox,  5  Mylne  &  C.  72  (1840) ; 

5    Ves.    495    (1800);     8    Ves.    561  Lambert  v.   Thwaites,  L.   R.   2   Eq. 

(1803);  7n  re  Phene's  Trusts,  L.  R.  151    (1866);    Wilson   v.   Duguid,  24 

5  Eq.  .346  (1868)  ;  Wetmore  v.  Hen-  Ch.  D.  244  (1883). 

ry,  259  111.  80.  <J8  Casterton  v.  Sutherland,  supra  ; 

9^  Harding  r.  Glyn,  SHprfl.  Faulkner    r.   Wynford,   supra;    Wil- 

^•' In  re  Phene's  Trusts,  supra.  son  v.  Duguid,  s-upra. 

9«  Doyley  r.  Attorney-General,  su-  ^^  In  re  Phene's  Trusts,  L.  R.  5 

pra.  Eq.  346   (1868). 

9"  Casterton  v.  Sutherland,  9  Ves.  ^  Ante,   §500. 

729 


§  637]  FUTURE    INTERESTS  [Ch.    XXV 

in  case  of  legal  titles,  and  the  refusal  of  courts  of  equity  whicli 
follow  the  common  law  courts,  to  find  a  condition  precedent  of 
survivorship  ~  seems  to  have  been  strong  enough  to  justify  a 
holding  that  those  took  who  were  in  esse  at  the  testator's  death/^ 

§  637.  Suppose  there  is  merely  a  power  to  appoint  to  special 
objects  and  no  express  gift  in  default  of  appointment,  and  no 
basis  in  the  language  used  for  any  direct  gift  to  such  objects : 
If  the  inference  from  the  entire  context  is  that  the  objects  were, 
as  against  all  others,  to  receive  the  property  or,  as  the  phrase 
is,  that  the  donee  held  the  power  in  trust  solely  for  the  ob- 
jects of  the  power,  it  is  settled  that  those  objects  are  entitled 
in  default  of  appointment.^ 

Two  theories  have  been  advanced  to  support  this  result.  The 
first  is  that  a  gift  in  default  of  appointment  may  be  implied.  This 
is  strongly  supported  by  Mr.  Gray.-"'  The  difficulty  with  this 
view  is  that  in  the  latter  half  of  the  19th  century  the  impli- 
cation of  gifts  in  wills  has  found  no  favor.  Unless,  therefore, 
a  doctrine  of  implication  has  been  firmly  settled  in  a  particu- 
lar ease  it  is  in  a  precarious  position  today.  That  is  true  also 
in  this  state.''  The  recent  case  of  In  re  Weekes'  Settlement  '^ 
indicates  the  danger  of  relying  upon  a  theory  of  implication  to 
support  a  gift  in  default  of  appointment.  The  other  theory 
upon  which  the  objects  of  the  power  are  entitled  is  that  a  con- 
structive trust  arises.  Equity  requires  those  who  take  in  default 
of  appointment  to  hold  their  title  as  constructive  trustees  for 
the  objects  of  the  power.  The  facts  necessary  to  raise  the  con- 
structive trust  are  that  the  objects  of  the  power  were  preferred 
to  all  the  world ;  that  the  donee  was  charged  with  a  fiduciary  ob- 
ligation to  make  the  appointment ;  that  his  failure  to  do  so  is  a 
breach  of  that  obligation  and  that  those  who  profit  by  that  breach 
will  not  be  permitted  by  a  court  of  equity  thus  unjustly  to  enrich 
themselves.  This  is  precisely  the  same  reasoning  upon  which 
equity  at  the  beginning  of  the  17th  century  raised  a  constructive 

,      2  Ante,  §§  329,  356,  496.  s  "Powers  in  Trust  and  Gifts  Im- 

3  Lambert  v.  Thwaites,  supra.  plied  in  Default  of  Appointment, ' ' 

4  Kennedy  v.  Kingston,  2  JaC  &  by  John  Chipman  Gray,  25  Harv. 
W.  431    (1821);    Moore  v.  Ffolliot,  Law  Rev.  1. 

19  L.  R.  Ir.  499   (1887);   Walsh  v.  (i  Ante,  §151. 

Wallinger,  2  R.  &  Myl.  78  (1830)  ;  ^  l.  R.  [1897]  1  Ch.  289. 

Freeland   v.   Pearson,   L.    R.    3   Eq. 
658   (1867). 

730 


Cii.  X.YV]  POWERS  I  §637 

trust  against  licii-s  or  devisees,  requiring  them  to  sell  real  estate 
to  pay  debts  and  legacies  when  a  power  to  sell  real  estate  to 
pay  debts  and  legacies  was  reposed  in  the  executors  and  failed 
by  reason  of  the  death  of  all  of  the  executors.^ 

There  is  no  difference  in  result  between  these  two  theories 
on  the  question  of  what  objects  of  the  power  are  entitled.  Un- 
der both  theories  alike  where  the  appointment  is  by  will  only,  an 
inference  arises  that  those  only  will  take  who  survive  the  donee. 
A  difference  in  result  might  arise  Avhere  a  bona  fide  purchaser 
took  from  those  who  had  the  legal  or  equitable  title  and  against 
whom  the  constructive  trust  must  be  raised.  There  might  be 
a  diff'erence  of  procedure.  If  a  constructive  trust  must  be  relied 
upon  the  remedy  is  always  in  equity.  Tf  a  gift  by  implication 
exists  there  would  be  an  action  at  law  based  upon  a  legal  title. 

No  difference  exists  between  the  two  theories  where  there  is 
an  express  gift  over  in  default  of  appointment.  In  that  case  no 
gift  could  be  implied  and  no  constructive  trust  raised.  This  is  the 
basis  for  the  result  reached  by  our  Supreme  Court  in  Goodrich 
V.  Goodrich.^  In  that  case  there  was  a  devise  to  the  widow  with 
power  to  appoint  among  the  children  as  she  saw  fit.  During 
the  life  of  the  widow  the  children  were  not  entitled  to  partition. 
This  must  have  proceeded  upon  the  ground  that  the  widow  was 
not  a  trustee  but  took  the  whole  beneficial  interest  in  the  prop- 
erty devised,  with  a  power  appendant  to  appoint.  Under  such 
circumstances  she  had  in  effect  a  gift  in  default  of  and  until 
appointment  and  the  children  had  no  interest  legal  or  equitable 
to  be  partitioned.^'^ 

Suppose  a  testator  devised  to  A  a  life  estate  with  power  to  ap- 
point among  A's  children,  adding  a  declaration  that  he  did  not 

8  Ante,  §622.  before  the   effect  of   the   word   resi- 

9  219  111.  426.  <Uie    can    be    calculated.      In    other 

10  It  should  be  ol)served.  however,  words,  the  residuary  clause  is  not  a 
that  a  mere  residuary  gift  does  not  gift  in  default  of  appointment  un- 
stand  on  the  same  footing  in  this  til  you  have  decided  the  very  point 
connection  as  a  gift  in  default  of  ap-  at  issue.  Hence  it  must  be  excluded 
pointment.  The  residue  is  simply  for  the  purpose  of  reaching  the 
that  which  has  not  been  disposed  of.  point  at  issue.  See  cases  in  Gray's 
Whether  there  has  been  an  inteut  article  entitled  "Powers  in  Trust 
expressed  that  the  objects  of  the  and  Gifts  Implied  in  Default  of  Ap- 
power  shall  take  as  against  all  the  pointment,"  25  Harv.  Law  Kev.  1, 
world    or    not    must    be    ascertained  11-12. 

731 


§  637]  FUTURE    INTERESTS  [Cn.    XXV 

care  for  A's  children  but  was  fond  of  A;  and  suppose  there  were 
no  gift  in  default  of  appointment.  In  other  words,  suppose  A 
is  given  a  power  to  appoint  among  his  children  without  anything 
from  which  it  may-  be  inferred  that  an  intent  has  been  expressed 
to  prefer  the  children  to  all  the  world.  On  the  theory  of  impli- 
cation as  a  rule  of  construction  supplying  an  intent  not  ex- 
pressed, the  gift  might  be  implied.  On  the  constructive  trust 
theory  the  objects  of  the  power  could  not  take.  Their  position 
is  merely  equal,  and  not  superior  to  that  of  those  who  take  by 
operation  of  law  in  default  of  appointment.  Hence  equity  would 
let  the  title  stay  where  it  fell.  This  is  the  true  explanation  of 
Lord  Hardwicke's  conclusion  in  Duke  of  Marlborough  v.  Lord 
Godolphin}^  In  Carherry  v.  M'Carthy  ^~  the  testator  devised  to 
his  wife  for  life  with  power  to  appoint  among  the  children  and 
especially  declared  that  he  made  no  further  provision  for  the 
children.  This  last  was  taken  to  mean  that  if  the  children  did 
not  take  by  appointment  in  the  wife's  discretion  no  other  pro- 
vision was  made  for  them.  This  is  substantially  a  context  put- 
ting the  children  and  whoever  was  entitled  in  default  of  appoint- 
ment on  the  same  footing  and  no  gift  was  implied  to  the  chil- 
dren in  default  of  appointment  and  no  constructive  trust  could 
be  raised  in  their  favor. 

Suppose  that  A  has  a  testamentary  power  and  there  is  an  ex- 
press gift  over  to  X  in  default  of  A 's  appointment.  A  appoints 
to  B  for  life  with  power  in  B  to  appoint  to  his  children,  but 
there  is  no  gift  in  default  of  appointment  by  B.  Mr.  Gray 
insisted  that  on  the  theory  that  a  gift  in  default  of  appointment 
might  be  implied,  it  must  have  been  implied  here  in  B's  chil- 
dren.!-"*  jf  the  constructive  trust  theory  be  adopted  there  is 
nothing  in  the  context  of  A's  appointment  which  indicates  that 
B's  children  are  to  be  preferred  to  those  Avho  take  in  default 
of  appointment  and  hence  if  the  title  comes  in  default  of  ap- 
pointment to  X,  no  constructive  trust  will  be  raised.  In  In  re 
Weekes'  Settlmient^*  the  court  denied  any  theory  of  implica- 
tion. It  did  not  advert  to  the  constructive  trust  theory  as  avail- 
able for  B's  children. 

112  Ves.  Sr.  61  (1750).  nignt,"  by  John  Chipman  Gray,  25 

12  7  L.  R.  Ir.  328  (1881).  Harv.  Law  Rev.  1. 

13  "Powers    in    Trust    and    Gifts  i*  L.  R.  [1897]  1  Ch.  289. 
Implied     in     Default    of     Appoint - 

732 


Cii.  XXVJ  POWERS  (§6:iU 

TITLE    V. 
APPOINTED    PROPERTY    AS   ASSETS. 

§  638.  The  usual  rule  in  force  in  Illinois:  Oilman  v.  Bfll,^-' 
recognized  the  doctrine  of  UoIiiks  v.  Coghill,^''  and  lield  tliat  so 
long  as  there  had  been  no  execution  of  a  general  power  by  the 
donee,  the  donee's  creditors  coidd  not  reach  the  property  subject 
to  the  appointment.  The  same  Illinois  case  clearly  i-ecoj;ni/.ed 
the  force  of  Bainton  v.  Ward,^  ~  holding  that  if  a  general  power 
to  appoint  by  deed  or  will,  be  exercised  by  the  donee  to  a  volun- 
teer, creditors  can  reach  the  property  snl)ject  to  the  appoint- 
ment.^* 

Skinner  v.  McDowell,^'*  must,  it  would  seem,  rest  upon  the 
ground  that  the  life  tenant  who  executed  the  mortgages,  had 
no  power  to  do  so.  Hence,  the  power  was  not  exercised  and  the 
court  was,  therefore,  justified  in  the  remark  that  "to  admit  that 
the  mortgages  mentioned,  were  fraudulent  and  set  them  aside, 
could  in  no  way  benefit  the  complainants,"  who  were  judgment 
creditors  of  the  donee  of  the  poAver. 

TITLE   VI. 
DEFECTIVE  EXECUTION. 

§  639.  Sug-g-estions  by  our  Supreme  Court  in  favor  of  the 
usual  doctrine :  In  Oilman  v.  Bell,^^  our  Supreme  Court  stated 
by  w-ay  of  dictum  merelj^,  that  "where  there  has  been  a  defective 
execution,  the  court  will  supply  the  defective  execution  of  the 
power  in  favor  of  a  purchaser,  creditor,  wife  or  cliild";  thus  re- 
ferring in  terms  to  the  usual  doctrine  of  the  English  cases.^i  In 
Breit  v.  Ycaton,~'-  the  court  refused  to  aid  a  defective  execution. 
In  that  case  the  wife  had  a  power  to  appoint  under  a  marriage 
settlement,  provided  she  did  so  by  an  instrument  having  tliree 

IS  99  111.  144.  the   doctrine   as   stated    in   the   text, 

i«  7  Ves.  499.  was  mere  dictum  and  not  afterwards 

IT  2  Atk.  172.  followed   by  Lord   Hardwicke. 
18  Observe  that  the  court  in  Gil-  m  169  111.  365. 

man  v.  Bell,  supra,  notices  that  Bain-  -"  99  111.  144,  149. 

ton  V.  Ward,  as  it  appears  in  the  re-  -i  See  also  the  language  of  Breit 

port    in     Atkyns     was    inaccurately  v.  Yoaton,  101  111.  242,  26.i. 

stated  and  that   anytiiing   contra   to  -'^  101  111.  242,  26."?. 

733 


§  640]  FUTURE    INTERESTS  [Ch.    XXV 

attesting  witnesses.  She  made  a  conveyance  to  her  husband. 
This  wavS  defective  as  an  execution  of  the  power  because  of  the 
absence  of  the  attesting  Avitnesscs.  The  wife  was  dead.  There 
was  a  meritorious  consideration  and  a  substantial  appointment. 
All  the  requirements  of  the  English  cases,  for  aiding  a  defective 
appointment  were  present,  except  that  the  defective  appoint- 
ment Avas  by  a  wife  in  favor  of  her  husband.  On  that  ground 
our  Supreme  Court  held  that  a  court  of  equity  would  not  aid  the 
defective  execution.  In  Goodrich  v.  Goodrich  ^3  a  widow  having 
power  to  appoint  among  her  children,  contracted  to  appoint  to 
her  son  whenever  he  requested  a  conveyance.  The  son  died  with- 
out having  made  any  request.  It  was  held  that  for  that  reason 
there  was  no  substantial  execution  which  could  be  aided  by  a 
court  of  equity. 

TITLE  VII. 
WHAT  WORDS  EXERCISE  A  POWER. 

§640.  The  plain  case:  Where  the  instrument  recites  that 
it  is  made  pursuant  to  the  power  and  for  the  purpose  of  exer- 
cising it,  the  words  are  clearly  sufficient  to  accomplisli  that 
object.2^  Careful  conveyancing  should  not  be  satisfied  with  less 
than  this. 

§  641.  The  difficult  case  occurs  where  the  donee  makes  a 
general  gift  of  all  his  property  without  any  direct  reference 
to  the  power  or  his  intention  to  exercise  it:  In  considering 
whether  the  power  is  exercised  or  not  in  such  a  case,  several 
distinctions  must  be  taken : 

(1)  It  may  fairly  be  said  that  the  rule  of  Clere's  case  ^^  has 
been  followed  so  far  as  it  declared  that  one  who  had  no  land  of 
his  own,  but  only  land  over  which  he  had  a  power  of  appoint- 
ment would  be  held  to  have  exercised  the  power,  though  he  con- 
veyed only  in  general  terms. ^^ 

23  219  111.  426.  dice  to  the  power  may  have  been. 

24  Hawthorn    v.    Ulrieh,    207    in.  '-'r,  6  Co.   17b. 

430,  432;   Griffin  v.  Griffin,  141  111.  20  Wimberly  v.  Hurst,  33  111.  166, 

373,   383.     In   Henderson   v.   Black-  173,  semUe.     Is  not  this  the  proper 

burn,  104  111.  227;  Markillie  v.  Rag-  explanation   of  Purser  1;.   Short,   58 

land,  77  111.  98;  Kaufman  v.  Breck-  111.   477?     Here  the  executors  with 

inridge,   117   111.   305  and  Jenks  v.  power   of   sale   under  the   will,   but 

Jackson,   127  111.   341,   it   does   not  having  themselves  no  beneficial  in- 

appear    what    the    terms    of    refer-  terest   in   the   real   estate  conveyed, 

734 


Ch.  XXV] 


POWERS 


§641 


(2)  The  chief  diffieulty  is  over  the  case  where  the  donee  con- 
veys in  general  terms  only,  without  explicit  reference  to  any 
power,  and  has  lands  or  personal  property  of  his  own  to  which 
the  language  used  may  apply. 

The  English  courts,  before  the  Wills  Act,'-^^  administered  this 
very  rigid  rule :  General  words  of  conveyance  which  might  ap- 
ply to  the  property  of  the  transferor  over  which  he  had  a  right 
of  disposal  apart  from  the  power,  operated  to  transfer  such 
property  only,  and  could  not  amount  to  the  exercise  of  the 
power,  unless  there  were  a  very  direct  and  specific  indication 
of  an  intention  so  to  do.  The  Wills  Act  changed  this  for  a 
large  number  of  cases  by  providing  that  a  general  devise  of  real 
and  personal  property  shall  operate  as  the  exercise  of  a  general 
power  unless  a  contrary  intent  appear  fi"om  the  will. 

Our  Supreme  Court  has  not  adopted  either  of  these  views.  It 
certainly  cannot  be  relied  upon  as  administering  the  statutory 
rule,  for  in  Harvard  College  v.  Batch r^  it  distinctly  held  that  the 
general  residuary  clause  of  the  will  of  the  donee  would  not  oper- 


purported  to  sell  under  a  decree 
which  was  void.  It  was  held,  how- 
ever, that  the  deed  could  operate  as 
the  exercise  of  a  power. 

Christy  v.  PuUiam,  as  reported 
in  17  111.  59,  might  go  upon  the 
same  ground.  In  this  case,  how- 
ever, as  reported  in  Pulliam  i'.  Chris- 
ty, 19  111.  331,  it  appears  that  tine 
donee  of  the  power  had  a  life  estate 
in  the  property  over  which  she  had 
a  power  of  appointment.  It  was 
held,  however,  that  her  life  estatS 
was  inalienable.  (Post,  §  730.) 
Upon  that  supposition  she  had  no 
transferable  interest  except  that 
over  which  she  had  a  power  of  ap- 
pointment and  hence  the  power  may 
be  regarded  as  well  exercised  under 
the  rule  in  Clere's  case,  supra. 

2-  7  Wm.  IV  and  1  Vict.,  c.  26, 
8.  27. 

28  171  111.  275,  283.  See  also  Cof- 
fing  V.  Taylor,  16  111.  457,  474; 
Davenport  i".  Young,  16  111.  518, 
552. 


Observe,  however,  the  following 
cases  which  seem  almost  to  come 
up  to  the  rule  of  the  Wills  Act: 
Goff  V.  Pensenhafer,  190  111.  200, 
210  et  seq.,  and  Fairman  r.  Beal, 
14  111.  244.  See  also  Christy  v. 
Pulliam,  17  111.  59  and  Pulliam  v. 
Christy,  19  111.  331,  supra,  note  26. 

In  Griflfin  v.  Griffin,  141  111.  373, 
381-382,  the  widow,  who  topk  a 
.  life  estate  under  the  will  and  had 
power  of  sale  to  pay  debts,  made 
a  deed  to  Henry  Griffin.  The  exer- 
cise of  the  power  was  sustained 
though  the  court  said :  "  It  is  true 
that  the  power  there  granted  was 
granted  to  Mary  Griffin,  the  execu- 
trix, in  her  trust  official  capacity 
of  executrix,  and  that  she  did  not 
attach  the  designation  of  executrix 
to  her  signature  to  the  conveyance, 
or  name  herself  therein  as  execu- 
trix, or  refer  to  any  will  or  power. 
These,  however,  in  our  opinion  are 
only  matters  of  form  and  not  ma- 
terial. 


735 


§  641]  FUTURE    INTERESTS  [Cn.    XXV 

ate  as  a  valid  appointment.  According  to  the  English  cases  un- 
der the  Wills  Act,  the  result  Avould  have  been  otherwise.^^  The 
fact,  which  the  Illinois  court  calls  attention  to,  that  the  will  of 
the  donee  was  made  prior  to  the  time  when  the  will  creating  the 
power  was  probated,  would  not  have  made  any  difference  under 
the  English  cases.-'^'^  In  the  same  way  the  attitude  of  the  Eng- 
lish cases  before  the  Wills  Act  seems  to  have  been  directly  re- 
pudiated in  this  state.^^ 

The  rule  as  administered  in  Illinois  lies  somewhere  between 
the  extremes.  It  is  this:  The  instrument  of  appointment  must 
still  affirmatively  show  an  express  intent  on  the  part  of  the  donee 
to  exercise  the  power ;  '-'^  but  any  circumstances,  actually  indi- 
cating that  intent  and  appearing  upon  the  face  of  such  instru- 
ment, are  sufficient.  Thus,  in  Funk  v.  Eggleston,^'^  the  court 
laid  great  stress  upon  the  fact  that  the  donee  specifically  devised 
a  watch  which  belonged  to  the  estate  of  the  donor  and  over  which 
she  had  no  power  of  disposal  by  will,  except  in  the  exercise  of 
the  power.  She  devised  this  watch  as  her  property.  Prom  this 
it  was  argued  by  the  court  that  whenever  she  spoke  of  her  prop- 
erty she  was  including  the  property  over  which  she  had  a  power 
of  disposition  under  the  will  of  her  husband.  In  Goff  v.  Pensen- 
hafer,^^  the  power  was  held  to  have  been  well  exercised  by  a  quit- 
claim deed  of  land  in  which  the  donee  had  a  life  estate  and  a 
power  of  appointment  in  fee,  both  held  under  the  will  of  her  hus- 
band. For  this  result  the  court  relied  only  upon  the  language  of 
the  deed  by  which  the  grantor  conveyed  all  her  right,  title  and 
interest  in  tlie  land  of  which  her  husband  died  seized  and  "which 
shall  have  or  shall  hereafter  accrue  to  her  by  virtue  of  the  last 
will  and  testament  of  her  deceased  husband. ' '  ^^  So,  in  Foster 
V.  Grey,^^  the  donee  bequeathed  legacies  three  times  in  excess  of 

29Spooner's   Trust,  2   Sim.  N.   S.  474;    Davenport    v.    Young,    16    III. 

129;    Clifford    v.    Clifford,    9    Hare,  548,  552. 

675;    Attorney   General  v.  Bracken-  33  92  111.515. 

bury,  1  Hurl.  &  C.  782;   In  re  Wil-  ^^90  111.  200. 

kinson,  L.  E.  4  Ch.  App.  587 ;  Theo-  3'>  So,  in  Fairman  v.  Beal,  14  111. 

bald  on  Wills  (2nd  ed.),  178.  244,  the  exercise  of  a  power  by  the 

30  Boyes  v.  Cook,  14  Ch.  Div.  53 ;  devisee  who  was  life  tenant  under 
Theobald  on  Wills,  2nd  ed.  179.  the   will    which    created   the   power, 

31  Punk  V.  Eggleston,  92  111.  515.  was  held  valid,  though  the  deed 
See,  also,  cases  cited  infra,  notes  contained  only  ' '  a  reference  to  the 
.34-.36.  will. ' ' 

32  Coffing   r.    Taylor,   16    111.    457,  ^o  96  111.  App.  ;'.8. 

736 


Ch.  XXy]  POWERS  [§643 

her  own  personal  property,  but  less  than  her  assets  and  those 
over  which  she  had  a  power  of  disposition  combined.  She  also 
gave  her  executors  full  power  to  convey  real  estate.  She  had  no 
real  estate  of  her  own,  but  she  did  have  a  power  of  appointment 
over  some.  From  all  these  circumstances  an  expressed  intent 
was  found  to  exercise  the  power  as  to  realty  and  personalty.  In 
Bevans  v.  Murray  •''^  a  quit-claim  deed  was  held  to  be  a  sufficient 
exercise  of  a  power  by  a  life  tenant  having  power  to  convey  the 
fee.  This,  however,  went  upon  the  ground  that  the  adverse  party 
alleged  in  his  bill  that  such  an  effect  should  be  given  to  the 
deed.  In  Riemcnschneider  v.  Tortoriello  •-**  a  life  tenant  with 
power  to  convey  the  fee,  who  had  contracted  to  make  a  convey- 
ance, offered  a  warranty  deed  which  contained  no  reference  to 
the  power.  The  court  intimated  that  this  would  have  conveyed 
only  the  life  estate  so  that  the  vendor  was  in  default  in  the  car- 
rying out  of  the  contract. 

TITLE  VIII. 
EFFECT  OF  EXCESSIVE  EXECUTION. 

§642.  Usual  rule  followed  in  Illinois:  In  Eopkinson  v. 
Swaim  •*'•'  the  life  tenant  had  power  to  appoint  a  trustee  for  the 
remainderman,  but  no  power  to  alter  the  beneficial  interests. 
He  appointed  the  trustee  but  attempted  to  make  gifts  over  in 
certain  events.  The  latter  were  in  excess  of  the  power,  but  were 
held  to  be  so  far  separable  from  the  provision  appointing  the 
trustee  that  the  appointment  was  void  only  as  to  the  excess 
and  the  entire  appointment  did  not  fail. 

TITLE  IX. 
EXISTENCE  AND  SCOPE  OF  POWERS  OF  SALE  AND  LEASE.«> 

§  643.  Power  in  executors  and  trustees  to  sell  and  dispose 
of  the  fee  of  real  estate — Existence  of  the  power:  »i  When 
the  power  to  sell   real  estate  is  directly  given  to  executors  or 

37  251  111.  603,  621-622.  powers.      Whether    a    power    exists 

38  287  111.  482.  in  an    executor   or  trustee   or   in  a 

39  284  111.  11,  21.  life  tenant  or  trustee,  the  question 
♦0  It    is    not    believed    that  it    is       of  construction  is,  it  is  believed,  the 

necessary    here,    to    make    any    dis-       same. 

tinction    between    real   and   spurious  *!  Observe    the   jurisdiction    of    a 

Kales  Fut.  Int. — 47  737 


§  643: 


FI'TUKE    INTERESTS 


[Ch.  XXV 


trustees,^-  the  only  difficult}'  is  tlie  extent  of  that  power.'*^^ 
AY  hen  the  power  is  not  directly  expressed,  nice  questions  arise 
as  to  when  one  may  Mith  certainty  say  that  it  is  found  expressed 
by  interpretation.  One  line  of  reasoning  at  least  by  which  a 
power  may  be  thus  expressed  has  been  approved  in  this  state. 
It  is  this :  Where  a  testator  expressly  provides  that  a  mixed  fund 
of  realty  and  personalty  shall  be  dealt  Avith  as  cash,  there  is,  by 
necessary  implication,  a  power  to  sell  real  estate.  There  is  such 
an  express  provision  clearly  enough  when  the  testator  directs 
that  a  distribution  be  made  in  cash,^^  or,  if  the  mixed  fund  be 
directed  to  be  loaned  out  at  the  highest  rate  of  interest  obtain- 
able,4"  or  invested  "in  good  bonds  or  mortgages,"^"  and  even 
where  the  trust  estate  is  designated  as  a  "fund."  ^^  80,  where, 
in  a  settlement  inter  vivos,  there  was  a  direction  to  trustees  to 
pay  debts,  to  devote  the  principal  of  the  fund  to  the  support  of 
the  settlor's  family,  and  to  p«i/  over  the  fund  to  persons  named, 
it  was  held  that  a  poAver  of  sale  of  real  estate  was  given. ■*'^  It 
is  equally  clear,  however,  that  no  express  intent  that  the  mixed 
fund  shall  be  dealt  with  as  cash,  arises  from  the  direction  to 
trustees  or  executors  to  "divide"  the  estate.^*' 


court  of  equity  to  break  in  upon 
trusts  and  order  a  sale  where  no 
power  is  expressed:  Longwith  v. 
Eiggs,  123  111.  258;  Gavin  v.  Cur- 
tin,  171  lU.  640;  Stoff  v.  McGinn, 
178  111.  46;  Marsh  v.  Eeed,  184  111. 
263;  Thompson  v.  Adams,  205  111. 
552;  Spengler  v.  Kuhn,  212  111.  186; 
Denegre  v.  Walker,  214  111.  113. 

42  White  V.  Glover,  59  111.  459. 

43  Post,  §  644. 

4-t  Poulter  V.  Poulter,  193  111.  641. 
See  also  Brown  v.  Miner,  261  111. 
543. 

45  Davenport  v.  Kirkland,  15()  111. 
169. 

40  Planner  i'.  Fellows,  20G  111.  136, 
137. 

47  111.  Mission  Soc.  v.  Am.  Mis- 
sion Soc,  277  111.  193. 

48  Cherry  v.  Greene,  115  111.  591. 
Winston  v.  Jones,  6  Ala.  550,  seems 
to    go    very    far   in    finding   an    ex- 


press direction  to  treat  a  mixed 
fund  as  cash  and  so  adduce  a  pow- 
er of  sale  by  implication.  See  also 
Dickson  v.  New  York  Biscuit  Co., 
211  111.  468,  482,  for  implication  of 
power  from  direction  to  trustees  to 
distribute  what  remains,  see  post, 
§644. 

49  Hale  V.  Hale,  125  111.  399  (di- 
rection to  trustees  to  "divide"); 
Poulter  V.  Poulter,  193  111.  641  (di- 
rection to  executors  to  divide 
equally)  ;  Gammon  v.  Gammon,  153 
111.  41  (direction  to  executors  to  di- 
vide into  parts  and  the  parts  to 
belong,  etc.) ;  Haward  v.  Peavey, 
128  111.  430,  437.  Cf.  Hamilton  v. 
Hamilton,  98  111.  254. 

Stoff  V.  McGinn,  178  111.  46,  at 
55,  is  not  contra  because  the  only 
question  there,  was  whether  a  de- 
cree construing  the  will  and  find- 
ing  a    ]iower    of   sale    from    tlic    di- 


738 


Cn.  XXV]  POWERS  ISS^'^J 

§644.  The  extent  of  the  power:  The  questions  here  are 
rather  iniscellaiioous,  since  tliey  arise  from  the  special  contexts 
of  particular  instruments.^"  The  following  cases  stand  out  as 
decisions  of  general  utility.  In  White  v.  Glover/'^  it  was  held 
that  the  trustee  can  sell  either  at  public  or  private  sale  if  there 
is  nothing  in  the  creation  of  the  power  to  the  contrary.  In 
Franklin  Savings  Bank  v.  Taylor -'-^  the  supreme  court  indicates 
the  principle  upon  \vhich  the  purchaser  from  a  trustee  need  not 
look  to  the  application  of  the  purchase  money  when  there  is  no 
express  clause  exempting  him  from  that  responsibility.  The 
court  there  said :  "Where  it  appears  that  the  donor  of  the  power 
confided  the  application  of  the  purchase  money  to  the  judgment 
and  discretion  of  a  particular  person  or  persons  designated,  it 
is  conclusive  that  it  was  not  intended  to  burden  the  purchaser 
with  it. ' '  -'••  Sometimes  the  question  arises  as  to  whom  an  ex- 
press power  is  given ;  ^^  or  whether  the  power  is  in  an  indi- 
vidual as  executor  or  trustee/""^  or  as  executor  or  life  tenant.-"''' 

§  645.  Power  in  trustees  to  make  leases — When  the  trustee 
has  a  legal  estate  in  fee  simple:  The  trustee  can,  of  course, 
actually  transfer  the  legal  title  to  any  term  of  years,  however 
long.  If  the  lessee  were  a  lona  fide  purchaser  for  value  he 
would  be  protected  in  any  event.  Practically,  however,  the 
lessee  always  has  notice  of  the  trusts  and  the  important  (lues- 

rection  to  divide  equally,  and  upon  169   111.    365.     On   the    construction 

the    allegation    of    the    complainant  of   powers   in   marriage    settlements 

that  no  such  division  could  be  macTe  see    Swift   v.    Castle,    23    111.    200; 

without    a    sale,    could    not    be    ini-  Breit  v.  Yeaton,  101  111.  242. 
peached  collaterally.  ^i  59  111.  459.     It  was  also   held 

Casey   v.    Canavan,    93    111.    App.  here  that   the  trustee  may  sell  for 

538,  541,  542,  is  supported  on  the  a  debt  or  for  cash  to  pay  a  debt, 

special  features  of  the  will,  though  and  that,  so  far  as  the  construction 

the  main  words  of  the  devise  were  of    the    power   went,   there    was   no 

to  divide  and  distril)utc.  distinction   between  mandatory   and 

50  Hamilton   v.   Hamilton,   98    Iff.  discretionary  powers. 
254;  Kurtz  v.  Graybill,  192  111.  445;  ^2  131  111.  376,  383. 

Hughes  V.  Washington,   72  111.  84;  53  Dickson   v.   New    York    Biscuit 

Pool  V.   Potter,   63   111.  533;    Jenks  Co.,  211  111.  468,  487,  488  and  cases 

V.  Jackson,  127  111.  341;   Longwith  there  cited,  accord. 
r.  Riggs,   123  111.   258;   Summers   r.  54  Rankin  v.  Rankin,  36  111.  293; 

Higley,  191  111.  193;  Starr  v.  MouT-  Lash  v.  Lash,  209  111.  595,  602. 
ton,  97   111.   525;    Taylor   v.  Walson,  sr.  Pahlman    r.   Smith,   L'l?   111.  4JS. 

177   111.  439;    Skinner   r.   M.-Doueli,  •=^':  Clark  r.  Clark,  172  111.  •.'•r^rK 

739 


§  645]  FUTURE    INTERESTS  [Ch.    XXV 

tion  is  wliat  leases  can  the  trustee  make  which  will  not  be  in 
breach  of  trust. 

Suppose  there  is  no  express  power  given  to  make  leases  for 
any  term.  Under  these  circumstances,  leases  which  may  last 
an  unreasonable  length  of  time  after  the  termination  of  the 
trusts  are  in  breach  of  trust.  Such  leases  would  incumber  the 
legal  title  after  it  had  come  into  the  hands  of  the  ultimate  bene- 
ficiaries and  the  trusts  were  closed.  Such  leases  might  produce 
&  very  low  rental  compared  with  the  value  of  the  fee  after  the 
termination  of  the  trusts.  Under  these  circumstances  the  lease 
would  be  unjust  to  the  one  ultimately  entitled.  A  power  to 
make  such  leases  in  the  trustee  must  be  explicitly  expressed. 
It  has  been  suggested  also  that  the  trustee's  power  may  be 
further  limited  so  that  he  can  make  leases  only  "for  such  rea- 
sonable terms  as  are  customary  and  essential  to  the  proper  care 
of,  and  to  produce  a  reasonable  income  from,  the  property. ' '  ^"^ 
Under  such  a  rule  it  is  possible  that  leases  which  will  expire 
within  the  period  of  the  trusteeship  may  be  in  breach  of  trust. 

In  view  of  the  rule  as  thus  stated,  it  becomes  of  vital  im- 
portance to  determine  what  language  will  confer  a  greater  power 
upon  the  trustee.  It  is  believed  that  the  usual  provision  that 
the  trustee  shall  collect  the  rents,  issues  and  profits  is  not  suffi- 
cient to  enlarge  the  trustee's  power  of  leasing.  Such  language 
is  certainly  insufficient  to  give  the  trustee  any  power  to  make 
leases  extending  beyond  the  period  of  the  active  trusts.^^    Even 

57  In  re  Hubbell  Trust,  135  Ia\  567;  Slater  i;.  Rudderforth,  2^  App. 
637,  664;  Hutchinson  v.  Hodnett,  (D.  C.)  497;  In  Hemphill's  Estate, 
115  Ga.  990.  5   Pa.   Dist.  690;    Ure  v.   Ure,   185 

58  In  the  following  cases  the  trus-  111.  216;  Ward  v.  Amory,  1  Curtis 
tee  was  held  to  take  only  an  estate  (Cir.  Ct.  U.  S.)  419;  Bacon's  Ap- 
for   the    life    of    the    equitable   life  peal,  57  Pa.  504. 

tenant.    If  there  had  been  an  indefi-  In  the  following  cases  it  was  held 

nite  power  of  leasing  given  the  trus-  that  the  trustee 's  lease   terminated 

tee    he   would   have   taken   the   fee:  upon  the  death  of  the  equitable  life 

Cooke  V.  Blake,  1  Exch.  220;  Shap-  tenant  because  the  trustee  had  only 

land  V.  Smith,  1  Brown,  Ch.  75 ;  Sil-  an  estate  for   the   life  of   the   equi- 

vester  v.  "Wilson,  2  T.  R.  444;  Baker  table  life  tenant.    If  there  had  been 

r.  Parson,  42  L.  J.  Ch.  N.  S.  228;  a  general  power  of  leasing  the  trus- 

Thurston  v.  Thurston,  6  R.  I.  296;  tee  must  have  had  a  fee:    Standard 

Brown    v.    Wadsworth,    168    N.    Y.  Paint  Co.  v.  Prince  Mfg.   Co.,  133 

225;    Ware    v.    Richardson,    3    Md.  Pa.  474;  In  re  McCaffrey's  Estate, 

505 J  Handy  v.  McKim,  64  Md.  560,  50    Hun.    (N.    Y.)    371.     See,   how- 

740 


Ch.  XXV] 


POWERS 


§647 


explicit  language  lliat  the  trustee  shall  Iiave  power  "to  make 
leases"  does  not  add  anything  to  the  power  whieh  tlie  trustee 
has  in  the  absence  of  any  such  express  language.''''  Nor  is  a 
power  to  make  long  leases  derivable  in  general  from  a  j)ower 
to  sell.""  It  is  only  when  the  creator  of  the  trust  uses  such 
phrases  as  that  the  trustees  shall  have  power  to  lease  "for  any 
term  they  think  proper,"  °^  or  where  the  period  for  which  the 
trust  is  to  last  is  itself  indefinite,"^  that  the  indefinite  power 
to  lease  occurs. 

§  646.  When  the  trustee  has  a  legal  estate  for  years  or  for 
the  life  of  the  equitable  life  tenant  only:  If  the  trustee  takes 
only  a  limited  estate,  as  an  estate  for  years  or  for  the  life  of 
the  equitable  life  tenant,  then  in  the  absence  of  an  express  power 
to  lease  beyond  the  term  of  the  trusteeship,  leases  made  by 
the  trustee  must  terminate  upon  the  termination  of  the  trustee's 
estate."^  It  has  been  suggested,  however,  that  even  with  that 
limitation  the  lease  may  be  in  breach  of  trust  and  subject  to 
be  set  aside  if  it  be  for  an  unreasonably  long  term  of  years. "■♦ 

§  647.  In  the  absence  of  power  in  trustees  to  sell  the  fee  or 
to  make  long-term  leases,  such  sale  or  lease  may  be  effected  with 
the  aid  of  a  court  of  equity  in  cases  of  necessity:  Where  the 
trustee  has  a  fee  a  court  of  equity  has  full  power  to  afford  the 


ever,  Black  v.  Ligon,  Harper's  Eq. 
(S.  C.)   205. 

In  Hale  v.  Hale,  146  111.  227,  248, 
the  court's  inference  of  a  power  to 
lease  refers  only  to  a  power  to 
lease  during  the  term  of  the  active 
trusts.  The  existence  of  such  a 
power  only  indicated  that  the  trus- 
tee was  to  have  some  legal  estate, 
there  being  no  words  of  direct  devise 
to  the  trustee. 

50  771  re  Hubbell  Trust,  135  la. 
637;  Walton  v.  Follansbee,  131  111. 
147;  Id.,  165  111.  480;  Bergengren 
V.  Aldrieh.  139  Mass.  259;  Hutche- 
son  V.  Hodnett,  115  Ga.  990;  Crosby 
V.  Davis,  2  Clark  (Pa.)  403;  Aek- 
land  V.  Lutely,  9  A.  &  E.  879;  Doe 
V.  Simpson,  5  East.  162.  But  see 
Collins  V.  MacTavish,  63  Md.  166. 

So  a  trustee  with  power  to  make 


leases  has  no  power  to  make  oil  and 
gas  leases:  Ohio  Oil  Co.  v.  Daughe- 
tee,  240  111.  361. 

60  Hedges  v.  Eiker,  5  Johns.  Ch. 
(N.  Y.)  163;  Bergengren  v.  Aid- 
rich,  139  Mass.  259. 

61  Doe  V.  Willan,  2  Barn.  &  AlcT. 
84;  Doe  v.  Wallbank,  2  Barn.  & 
Adol.  554;  Goddard  r.  Brown,  12 
R.  I.  31;  Prather  v.  Foote,  1  Dis- 
ney  (Ohio)   434. 

62  Collier  v.  Walters,  L.  R.  17  Eq. 
252. 

63  Standard  Paint  Co.  v.  Prince 
Mfg.  Co.,  133  Pa.  474;  In  re  Mc- 
Caffrey's Estate,  50  Hun.  (N.  Y.) 
371;  Bergengren  v.  Aldrieh,  139 
Mass.  259;  Hutcheson  r.  Hodnett, 
115  Ga.  990. 

6*  Hutcheson  r.  Hodnett,  supra. 


741 


§  647]  FUTURE    INTERESTS  [Ch.    XXV 

trustee  proteetion  lor  acts  done  by  him  in  the  management 
of  the  trust  estate.  A  court  of  equity  may  confirm  the  acts 
of  a  trustee  in  disposing  of  the  fee,^^  or  in  making  long-term 
leases '"'  and  thus  prevent  such  acts  from  being  in  breach  of 
trust.  If  the  trustee  takes  merely  an  estate  for  the  life  of  the 
eijuitable  life  tenant  and  the  remainder  is  legal,  equity  still 
has  power  to  vest  the  legal  title  of  the  remainderman  in  a  trus- 
tee and  order  the  sale  of  the  entii'c  fee.  This  follows  from  the 
cases  where  all  the  estates  have  been  legal  and  a  court  of  equity 
has  appointed  a  trustee  for  the  whole  fee  and  decreed  a  sale  or 
other  disposition  of  the  property.'^'  The  extent  of  the  poMer 
of  a  eourt  of  equity  in  this  respect  may  not  have  been  fully 
settled  in  this  state.  It  is  clear  that  where  the  estate  of  an 
infant  is  involved  and  the  adults  are  all  consenting,  the  court 
has  power  to  vest  title  in  a  trustee  and  order  a  sale  over  the 
objections  of  the  guardian  ad  litem  for  the  infant.*''^  Our  Su- 
preme Court  has  also  held  that  where  there  is  a  life  estate  m 
A  and  a  remainder  to  her  unborn  children  and  a  gift  over,  if  A 
has  no  children,  to  her  adult  brothers,  a  court  of  equity  had 
power  to  vest  title  to  the  whole  fee  in  a  trustee  over  the  ob- 
jection of  an  adult  brother,  and  order  a  sale  wdiich  would  bind 
the  adults  and  also  the  children  of  A  when  born.*'" 

A  court  of  equity  will  not,  however,  authorize  a  trustee  hold- 
ing the  fee  to  sell,  or  make  long-term  leases,  contrary  to  the 
terms  of  the  trust,  and  will  not  appoint  a  trustee  of  legal  estates 
to  sell  or  make  long-term  leases  unless  a  proper  showing  of 
necessity  be  made.     The  degree  of  necessity  required  is,  how- 

c^Voris    V.    Sloan,    68    111.    588;  gt  Gavin  v.   Curtin,   171  111.  640; 

Hale  V.  Hale,  146  111.  227;  Gorman  Baldrige  v.  Coffey,  184  111.  73;  King 

V.   Mullins,   172   111.  349.     See   also  v.  King,  215  111.  100. 

Curtiss  V.  Brown,  29  111.  201.  68  Hale    v.    Hale,    146    111.    227; 

On  the  same  principle  where  the  Baldrige    v.    Coffey,    184    IlL    73; 

entire  beneficial  interest  of  the  trust  Marsh  v.  Eeed,  184  111.  263. 

estate  is  in  a  cestui  who  is  insane  A  court  of  equity  will  take  juris- 

and  in  want,  a  court  of  equity  may  diction  also  where  the  separate  ea- 

authorize    the    trustee,    contrary    to  tate   of  a   married   woman   was  in- 

the   terms   of    the   trust,    to    cxpcnff  volved :     Curtiss   v.    Brown,    29    111. 

the  principal  of  the  trust  estate  for  201. 

the  benefit  of  the  cestui:    Longwith  «»  Gavin  v.   Curtin,   171  111.   640; 

V.  Riggs,  123  111.  258.  Fienhold  v.  Babcock,  275  111.  282. 

68  Marsh   v.   Reed,    184    111.    263; 
Denegre  v.  "Walker,  214  111.  113. 

742 


(.' H .  X X A'  J  POWERS  I  §  648 

ever,  to  a  considerable  extent  a  matter  of  discifiiun  with  the 
court.""  But  it  is  not  enough  to  warrant  the  decree  of  sah- 
that  more  income  would  be  produced  thereby  for  the  life  ten- 
ants ^  In  Denegrc  v.  WaUccr,'''-^  the  court  seems  to  have  gone  very 
far  in  giving  power  to  the  trustees  to  make  a  long-term  lease. 
It  looks  as  if  the  court  regarded  its  action  as  justified  upon 
mere  grounds  of  ])usiness  expediency.  It  is  submitted  that  the 
case  is  one  upon  which  it  is  dangerous  to  lean  too  heavily. 

In  all  ca.ses  where  on  grounds  of  necessity  a  couit  of  equity 
has  ordered  a  sale,  the  proceeds  have  been  held  for  those  bene- 
ficially entitled  to  the  estate  sold.  In  Wardncr  v.  Baptist 
Memorial  Board'^'^  the  court  declined  to  order  any  sale  of  the 
fee  so  that  part  of  the  principal  might  be  made  available  for 
the  support  of  the  life  tenant. 

§  648.  Power  in  life  tenants  to  sell  or  dispose  of  the  fee — 
Existence  of  the  power:  The  plainest  case  of  the  existence 
of  such  a  power  is  whei-e  language  is  used  explicitly  indicating 
tluit  the  fee  may  be  sold  or  ajipoiiited  \iy  the  life  tenanl."'* 

Suppose,  however,  the  words  used  do  not  mention  explicitly 
that  the  fee  may  be  disposed  of,  and  there  is  no  gift  over  of 
"what  remains"  or  "what  is  left"  or  "what  is  left  unexpended" 
"or  undisposed  of":  In  such  ca.ses  the  special  context  may 
be  strong  enough  to  confer  a  power  to  dispose  of  the  fee."^ 
Where  the  language  used  is  "with  the  right  to  dispose  of" 
property  for  a  particular  purpose,  such  as  supporting  the  life 
tenant  and  the  life  tenant's  family  and  where  the  sale  of  the 
fee   was  under  all   the   circumstances  necessary   to   effect   this 

•oVoris    r.    Sloan,    68    111.    588;  75  Crozier  r.  Hoyt,  97  111.  23  (wife 

Hale  V.  Hale,  146  111.  227;  Gavin  r.  given  full  power  to  sell  any  of  tlie 

Curtin,  171  111.  640;  Gorman  v.  Mul-  property    aforesaid    and    give    good 

lins,  172  111.  ,^49;  Baldrige  r.  Coffey,  title  to   the  same,  either  at   public 

184  111.  73;  Marsh  v.  Reed,  184  111.  or  private  sale);    Markillie  r.  Rag- 

263;  King  v.  King,  215  111.  100.  land,   77   111.   98    (dictum  that  lan- 

71  Johns   r.    Johns,    172    111.    472.  guage     "deal    with    the     same    as 

See  also  Johnson  v.  Buck,  220  111.  though    she    were    entire    and    sole 

226   and    Curtiss   v.    Brown,   29   111.  owner;       »      ♦      ♦  gypj^    possession, 

201.  and  entire  control  and  disposal,  con- 

■^-214  111.  113.  tinue  to  and  in  her  during  her  nat- 

'3  232  111.  606.  ural  life,"  gave  power  to  dispose  of 

■■•Butler    v.   Huestis,   68   111.  594,  the  fee). 
596;  Hamlin  et  al.  v.  United  States 
Kxpress  Co.,  107  111.  443,  447. 

743 


^6^S] 


FUTURE    INTERESTS 


[Ch.  XXV 


object,  a  power  to  sell  the  fee  is  found  to  have  been  expressed.'*^ 
If  the  life  tenant  is  given  expressly  a  power  to  "dispose  of 
the  property  by  will  or  otherwise  before  her  death"  the  power 
to  dispose  of  the  fee  inter  vivos  is  expressed,  because  that  power 
is  on  the  same  footing  with  the  power  to  dispose  by  will,  and 
the  latter  must  be  a  power  to  dispose  of  the  fee,  or  it  would  be 
senseless.'^  Where  there  is  no  special  context  in  favor  of  the 
power  to  convey  a  fee,  and  no  express  power  of  disposal  for  a 
particular  purpose  or  by  will,  but  only  such  words  as  ''with 
full  power  to  dispose  of  as  the  life  tenant  pleases"  or  similar 
expressions,  the  results  reached  by  the  courts  appear  to  be  op- 
posed. There  are  two  tendencies:  First:  It  is  said  that  since 
the  life  tenant  has  power  to  dispose  of  his  life  estate  as  he 
pleases  without  any  words  conferring  such  power,  words  giving 
a  power  of  disposal  are  useless  unless  they  confer  a  power  to 
dispose  of  the  fee.  A  power  to  convey  the  fee  has,  therefore, 
been  found  even  where  there  was  an  express  gift  over.^^    Second: 


"6  Kaufman  v.  Breckinridge,  117 
111.  305  ("to  be  disposed  of  and 
used  agreeably  to  her  direction  and 
approval,  and  in  such  manner  as 
she  may  deem  most  conducive  to 
the  welfare  and  comfortable  sub- 
sistence of  herself  and  our  beloved 
children. ' '  The  court  found  power 
to  dispose  of  the  fee,  declaring  that 
the  personal  property  was  of  incon- 
siderable amount  and  that  the  pur- 
pose for  which  the  power  of  disposal 
was  given  could  not  possibly  be  ef- 
fected without  the  conveyance  of 
the  fee)  ;  Ducker  v.  Burnham,  146 
111.  9,  13;  Morse  v.  Cross,  56  Ky. 
735;  Hall  v.  Preble,  68  Me.  100; 
Eicliardson  v.  Eichardson,  80  Me. 
585;  Stroud  v.  Morrow,  52  N.  C. 
463;  Boyer  v.  Allen,   76  Mo.  498. 

77  Fairman  v.  Beal,  14  111.  244; 
Christy  v.  Pulliam,  17  III.  59;  Pul- 
liam  V.  Christy,  19  111.  331;  Punk 
V.  Eggleston,  92  111.  515,  520;  Bow- 
erman  v.  Sessel,  191  111.  651,  654; 
Hale  V.  Marsh,  100  Mass.  468;  Dil- 
lon   V.    Faloon,    158    Pa.    468    (the 


power  to  dispose  by  will  is  a  power 
to  dispose  by  will  of  the  fee) ; 
Forsythe  v.  Forsythe,  108  Pa.  129; 
Stroud  V.  Morrow,  52  N.  C.  463; 
McCullough's  Adm'r.  v.  Anderson, 
90  Ky.  126. 

78  Cummings  v.  Shaw,  108  Mass. 
159  ("for  and  during  his  natural 
life,  with  the  right  to  dispose  of 
the  same  as  he  shall  think  proper" 
with  no  devise  over,  confers  a  power 
to  convey  in  fee)  ;  Lewis  v.  Pal- 
mer, 46  Conn,  454  ("for  her  to 
dispose  of  as  she  may  think  prop- 
er"); Glover  v.  Stillson,  56  Conn. 
316  ("with  power  to  dispose  of 
any  portion  of  the  estate  if  they 
should  desire, ' '  with  a  gift  over)  ; 
Security  Company  v.  Pratt,  65 
Conn.  161,  180  (power  given  to 
sell  any  part  "of  said  life  estate, 
real  or  personal,"  the  proceeds  to 
be  held  or  appropriated  by  her  ' '  to 
her  own  use  and  benefit  as  of  her 
own  property  and  estate, ' '  gift 
over)  ;  Forsythe  v.  Forsythe,  108  Pa. 
St.    129    ("with    power    to    dispose 


744 


Ch.  XXV] 


POWERS 


:§648 


On  the  other  hand,  it  is  said  that  the  rL-maiiidcnnan's  interest 
expressly  given  shoukl  not  be  jeopardized  by  vague  and  am- 
biguous phrases,  and  hence  the  words,  expressive  only  of  a 
power  of  disposal,  should  be  confined  to  a  power  to  dispose  of 
the  life  estate  given.'"  The  Supreme  Court  of  this  State  has 
several  times  approved  this  latter  tendency.**"  Several  times 
the  court  has  been  guided  by  it.^i  In  one  case  where  the  lan- 
guage was  strong  in  favor  of  the  power  to  convey  the  fee,  we 
have  a  dictum  that  such  i)0wer  did  not  exist.^- 


of  as  she  may  think  best");  Giles 
V.  Little,  13  Fed.  100  (to  my  wife 
"the  same  to  remain  and  be  hers, 
with  full  power,  right,  and  author- 
ity to  dispose  of  the  same  as  to  her 
shall  seem  meet  and  proper,  so  long 
as  she  shall  remain  my  widow)  ; 
Moyston  v.  Bacon,  75  Tcnn.  236; 
Woodbridge  v.  Jones,  183  Mass.  549 
(1903)  ("to  use  and  dispose  of 
the  same  as  she  may  think  proper 
with  the  remainder  thereof  on  her 
decease"  to  others,  gives  power  to 
convey  the  fee.  Court  regarded 
"remainder"  as  used  in  technical 
sense). 

.79  Bradly  v.  Westcott,  13  Ves.  445 
("to  be  at  her  full,  free,  and  abso- 
lute, disposal  during  her  life,  with- 
out being  liable  to  any  account"; 
gift  over)  ;  Brant  v.  Virginia  Coal 
&  Iron  Co.,  et  al.,  93  U.  S.  326  ("to 
have  and  to  hold  during  her  life, 
and  to  do  with  as  she  sees  proper 
before  her  death. ' '  Quaere,  whether 
any  gift  over)  ;  Rakestraw  v.  Rake- 
straw,  70  Ga.  806  ("be  held  and 
controlled  by  my  wife  during  her 
lifetime.  *  *  *  In  short,  it  is 
my  will  that  my  wife  shall  have 
full  and  entire  control  of  all  my 
effects,  of  whatever  kind,  with  a 
gift  over") ;  Bashore  v.  Mackenzie, 
8  Ohit)  Cir.  Ct.  Reports,  678,  680 
("to  Ijei.  held  and  used  by  her  for 
'her  own  support   and  in  support  of 


my  children"  and  "here1)y  author- 
izing and  empowering  her  to  man- 
age, control  and  dispose  of  my  prop- 
erty after  my  decease"). 

80  Boyd  V.  Strahan,  36  111.  3oo ; 
Henderson  v.  Blackburn,  104  111. 
227,  231;  Kaufman  v.  Breckinridge, 
117  111.  305;  In  re  Estate  of  Cash- 
man,  134  111.  88,  92;  Metzcn  v. 
Schopp,  202  111.  275,  285;  Mans- 
field V.  Mansfield,  203  111.  92,  97; 
Wardner  v.  Baptist  Memorial  Board, 
232  111.  606;  Kennedy  v.  Kennedy, 
105  111.  350. 

81  Boyd  V.  Strahan,  36  111.  355 
("to  be  at  her  own  disposal,  and 
for  her  own  proper  use  and  benefit 
during  her  natural  life, ' '  with  a 
gift  over)  ;  Wardner  v.  Baptist 
Memorial  Board,  232  ill.  606.  A 
fortiori,  where  the  life  tenant  is 
only  given  ' '  the  absolute  control  of 
the  same  during  her  lifetime,"  there 
is  no  power  to  convey  the  fee. 

S2  Mansfield  v.  Mansfield,  203  111. 
92,  97  ("should  circumstances  or 
their  necessities  require,  the  said 
person  or  persons  to  whom  the  lands 
hereinbefore  named  ar^  specifically 
devised,  shall  have  the  power  and 
authority  to  sell  and  convey  or  other- 
erwise  dispose  of  (including  the 
right  to  mortgage)  the  same  to  any 
extent,  not  in  excess  of  the  third 
of  the  value  of  the  same. ' '  The 
Court   said:    "It    is   difficult   to   sec 


745 


§648] 


FUTURE    INTERESTS 


[Ch.  XXV 


Suppose  the  language  expressly  creating  the  power  does  not 
mention  tliat  the  fee  mgv  be  disposed  of,  but,  in  addition  to 
the  express  words  of  disposal  (somewhat  ambiguous  so  far  as 
the  ilisposal  of  the  fee  is  concerned)  there  is  added  a  gift  over 
of  "what  is  left"  or  "what  remains"  or  "what  is  left  undis- 
posed of"  or  "what  is  left  unexpended"  or  like  expressions. 
In  such  cases  the  courts  seem,  practically  without  dissent,  to 
tind  a  power  in  tlie  life  tenant  to  dispose  of  the  fee.  Many  of 
the  cases  go  particularly  on  the  phrases  above  quoted.^^ 

If,  however,  there  are  no  words  indicating  directly  any  power 
of  disposal  and  only  a  gift  over  of  "what  remains,"  or  "what 
is  left,"  or  "what  remains  unexpended,"  or  "what  remains 
unused,"  then  the  cases  make  the  following  distinction:  As 
long  as  the  gift  over  is  of  what  "remains  unexpended'''  or  what 
"remains  unused,"  a  power  to  dispose  of  the  fee  is  found.^* 


how  that  position  [that  there  was  a 
power  to  convey  the  fee]  can  be 
successfully  maintained,"  but  held 
not  necessary  to  consider  this  ques- 
tion). 

83  Markillie  v.  Eagland,  77  111. 
98,  101  (the  phrase  what  remains 
especially  relied  upon  to  show  a 
power  to  dispose  of  the  fee)  ;  Funk 
V.  Eggleston,  92  111.  520;  Hender- 
son V.  Blackburn,  104  111.  229  (court 
relies  upon  the  phrase  "if  anything 
is  left") ;  Griffin  v.  Griffin,  141  III. 
373,  378  (court  did  not  go  particu- 
larly on  the  phrase  "what  re- 
mains"); Ducker  v.  Burnham,  146 
111.  9,  13;  Skinner  v.  McDowell, 
169  111.  365,  369  (court  goes  on 
the  phrase  "what  is  left");  Mann 
V.  Martin,  172  111.  18  (weak  lan- 
guage for  power  and  then  the  phrase 
"what  is  left");  Kirkpatrick  v. 
Kirkpatrick,  197  111.  144;  Thomp- 
son V.  Adams,  205  111.  552,  557, 
558  Ccourt  says  the  phrase  "what 
remains"  is  valuable  to  give  a 
power  only  as  it  explains  sometliing 
before  which  is  ambigi^ons  and  de- 
clares that,  in  the  absence  of  pre- 


vious words  indicating  a  power  to 
some  extent,  no  power  to  dispose  of 
the  fee  will  be  implied) ;  Dickson 
V.  New  York  Biscuit  Co.,  211  111. 
468,  482  ("what  remains"  used  to 
fortify  previous  language  indicat- 
ing power  of  sale) ;  Spengler  v. 
Kuhn,  212  111.  186,  196.  See  also 
to  same  effect:  Bishop  v.  Remple, 
11  Oh.  St.  277;  Warren  v.  Webb, 
68  Me.  133;  Scott  v.  Perkins,  28 
Me.  22;  McCullough's  Adm'r  v. 
Anderson,  90  Ky.  126;  Lynde  v. 
Estabrook,  89  Mass.  58;  Hale  v. 
Marsh,  100  Mass.  468;  Paine  v. 
Barnes,  100  Mass.  470;  Little  v. 
Giles,  25  Neb.  313;  Johnson  v. 
Johnson,  51  Ob.  St.  446;  Moody  i;. 
Tedder,  16  So.  C.  557;  Coat's  Ex'r 
V.  Louisville  &  Nashville  Railroad 
Co.,  92  Ky.  263 ;  Schreiner  v.  Smith, 
38  Fed.  897;  McMillan  v.  Deeruig 
&  Co.,  139  Ind.  70. 

84  In  re  Estate  of  Casbman,  134 
111.  88;  Walker  v.  Pritchard,  121 
111.  221,  229,  230;  Gaffield  v.  Plum- 
ber, 175  m.  521;  Shaw  v.  Hussey, 
41  Me.  495;  Chase  v.  Ladd,  153 
Mass.  12'6.    But  in  Ward  v.  Caverly, 


746 


Cii.  XXV 


POWERS 


§649 


Jl\  however,  the  word  "unexpended"  or  '"unused"  oi-  sonu- 
word  of  similar  force  is  not  inserted,  so  that  the  gift  over  is 
simply  of  "what  remains"  or  "what  is  left,"  then  no  power  to 
dispose  of  the  fee  is  expressed. ^•'' 

§649.  Extent  of  power  of  the  life  tenant:  A  usual  diffi- 
culty is  to  determine  whether  the  life  tenant  has  an  absolute 
unrestricted  power  or  whether  there  can  be  a  sale  only  for 
maintenance  or  what  the  donee  needs.  Under  In  re  Kstatc  of 
Cashman,^*^  it  would  seem  that,  when  the  words  of  a  gift  after 
Ihe  life  estate  of  "what  is  left  unexpended"  alone  confer  a 
])Ower  of  disposal  by  the  life  tenant,  they  give  such  power  with- 
out restriction.  In  other  cases,  the  context  of  the  will  has 
sometimes  been  held  to  cut  down  the  unrestricted  power,**" 
and  soraetnnes  not.''^  Sometimes  the  question  is  raised  as  to 
whether  the  power  is  to  convey  by  deed  or  will,  or  both.^»  In 
Bevans  v.  Murray, ^^  where  the  husband,  a  life  tenant,  was 
given  "full  power  to  sell,  *  *^  *  and  to  use  so  much  of  the 
income  and  principal  thereof  as  he  may  desire, ' '  the  court  said 
he  did  not  have  an  unlimited  power  of  di.sposal  but  only  the 
power  to  dispose  of  the  property  for  his  support  and  comfort. 


276  111.  416,  the  words  "remain 
unexpended,"  were  held  to  refer 
only  to  the  personal  property,  so 
that  the  life  tenant  had  a  right  only 
to  dispose  of  the  personalty  and  no 
power  to  dispose  of  the  fee  of  the 
realty. 

83Vanatta  v.  Carr,  223  lU.  160; 
Thompson  v.  Adams,  205  111.  557, 
558;  Dickson  v.  New  York  Biscuit 
Co.,  211  lU.  468,  482;  Welsch  v. 
Belleville  Savings  Bank,  94  111.  20(1, 
202. 

See,  however,  the  language  of  the 
following  cases:  Skinner  v.  Mc- 
Dowell, 169  111.  365,  369;  Mann  r. 
Martin,  172  111.  18;  Saegor  r.  Bode, 
181  111.  514,  519. 

Contra,  Clarke  v.  Middlesworth, 
82  Ind.  240;  Rumsdell  v.  Ramsdell, 
21  Me.  288. 

80  134  111.  88 ;  "Walker  v.  Priteh- 
ard,  121  111.  221. 


87  Kaufman  v.  Breckinridge,  117 
111.  305;  Oriffin  r.  Griffin,  141  111. 
373. 

88  Markillie  v.  Ragland,  77  111. 
98.  See  Spengler  r.  Kuhn,  212  III. 
186,  196. 

89  Bowerman  i'.  Sessel,  191  111. 
651,  654;  Fairman  i'.  Bcal,  14  111. 
244;  Christy  v.  Pulliam,  17  111.  59; 
19  111.  331;  Kirkpatriek  v.  Kirkpat- 
rick,  197  111.  144,  154.  See  ante, 
§  726,  on  Life  Interests  with  Power 
of  Disposition  or  Appointment. 
See  also  Butler  v.  Heustis,  68  111. 
594;  Crozier  v.  Hoyt,  97  111.  23.  In 
Fairman  v.  Beal,  supra,  the  power 
could  only  affect  the  remainder  after 
the  donee's  life  estate,  though  it 
could  be  exercised  by  deed. 

00  251  111.  603. 


747 


§  650]  FUTURE    INTERESTS  [Ch.    XXV 

He  was  entitled  to  convey  in  consideration  of  services  in  manag- 
ing the  property,  but  he  had  no  power  to  convey  without  con- 
sideration in  order  to  change  the  beneficiaries.  This  last  was 
not  a  sale  but  an  appointment.  There  was  no  power  except 
one  to  sell  or  dispose  of  the 'property  for  a  consideration.  In 
Hopkinson  v.  Swaim  ^^  a  power  in  the  life  tenant  to  appoint 
trustees  to  manage  the  shares  of  the  remaindermen,  "under 
such  limitations  and  restrictions  as  in  his  discretion  he  may 
deem  best,  so  as  to  secure  the  same  to  the  said  child  or  issue 
of  deceased  child,  for  his,  her  or  their  sole  and  separate  use, 
maintenance  and  enjoyment,"  conferred  only  a  power  to  ap- 
point trustees  and  provide  for  the  powers  of  the  trustees.  It 
conferred  no  power  to  alter  the  beneficial  interests. 

§  650.  Disposition  of  the  proceeds  of  sale :  Where  the  life 
tenant  has  power  to  dispose  of  the  fee  by  sale,  his  power  to 
use  up  the  proceeds  of  sale  must  be  expressly  given  or  he  will 
hold  the  proceeds  in  trust  to  invest,  use  the  income,  and  pay 
over  the  principal  to  the  remainderman.  Thus,  where  the  donee 
of  the  power  was  entitled  to  sell  for  her  "comfort  and  con-< 
venience,"  she  could  use  up  the  proceeds  for  that  purpose.^- 
Where  the  donee  merely  had  the  power  to  sell  she  was  obliged  to 
hold  the  proceeds  for  herself  for  life  and  then  pay  over  the 
principal  to  the  remainderman.^ ^ 

§651.  Power  of  life  tenant  to  make  leases :  A  life  tenant — 
even  one  with  power  to  dispose  of  the  fee — cannot  make  leases 
to  continue  beyond  the  termination  of  the  life  estate.^"* 

91  284  111.  11.  Barton  v.  Barton,  283  111.  338. 

92  Ellis  V.  Flannigan,  279  111.  93.  a*  Powers  v.  Wells,  244  111.  558. 

93  Powers  V.  Wells,  244   111.   558; 


748 


CHAPTER  XXVI. 
RULE  AGAINST  PERPETUITIES. 

TITLE    I. 
THE    RULE    AND    ITS   COROLLARIES. 

§  652.  The  rule  as  stated  by  Professor  Gray  i  is  in  force 
in  Illinois:  It  is  as  follows:  "No  interest  subject  to  a  con- 
dition precedent  is  good,  unless  the  condition  must  be  fulfilled, 
if  at  all,  within  twenty-one  years  after  some  life  in  being  at 
the  creation  of  the  interest.  "^ 

§  653.  The  future  interest  must  vest  in  the  proper  time : 
The  corollary  of  the  Rule  most  often  repeated  by  our  Supreme 
Court  is  that  the  future  interest  must  vest  in  the  proper  time.^ 
That  is,  at  the  time  the  interests  are  created  it  must  appear,  in 


1  Rule  against  Perpetuities,  §  201. 

2  Howe  V.  Hodge,  152  111.  252, 
274;  Lawrence  v.  Smith,  163  111. 
149,  160;  Owsley  v.  Harrison,  190 
111.  235,  241;  Chapman  v.  Cheney, 
191  111.  574,  584;  Pitzel  v.  Schnei- 
der, 216  111.  87,  97;  Madison  v. 
Larmon,  170  111.  65,  70;  Nevitt  v. 
Woodburn,  82  111.  App.  649;  190 
111.  283;  Hill  v.  Gianelli,  221  111. 
286,  291;  Johnson  v.  Preston,  226 
111.  447,  456;  Quinlan  r.  Wickman, 
233  111.  39,  44;  Mcttler  v.  Warner, 
243  111.  600,  609;  MeCutcheon  v. 
Pullman  T.  &  S.  Bank,  251  111.  550, 
555;  Dime  Savings  Co.  v.  Watson, 
254   111.   419,  423;    Wood  v.  Wood, 

276  111.  164,  168;   Kolb  v.  Landes, 

277  111.  440,  447. 

In  Waldo  v.  Cummings,  45  111. 
421,  426-427,  the  court  quotes  with 
approval  Lewis'  definition  of  a  per- 
petuity: "Lewis  in  his  treatise  on 
perpetuities,  defines  it  to  be  'a  fu- 
ture   limitation,    whether    executory 


or  by  way  of  remainder,  and  of 
either  real  or  personal  property, 
which  is  not  to  vest  until  after  the 
expiration  of,  or  will  not  necessarily 
vest  within,  the  period  fixed  and 
prescribed  by  law  for  the  creation 
of  future  estates  and  interests,  and 
which  is  not  destructible  by  the  per- 
sons for  the  time  being  entitled  to 
the  property,  subject  to  future  limi- 
tation, except  with  the  concurrence 
of  the  individual  interested  under 
that  limitation.'  Lewis'  Perpt. 
164."  See  also  Hart  v.  Seymour, 
147  111.  598,  613-614;  Planner  i'. 
Fellows,  206  111.  136,  141;  Sehaefer 
V.  Sehaefer,  141  111.  337,  342; 
Schuknecht  v.  Schultz,  212  111.  43, 
46;  Reid  v.  Voorhees,  216  111.  236. 
3  Lawrence  v.  Smith,  163  111.  149, 
160;  Bigelow  r.  Cady,  171  111.  229; 
Owsley  V.  Harrison,  190  111.  235; 
Post  I'.  Rohrbach,  142  111.  600,  606; 
Schuknecht  r.  Schultz,  212  111.  43, 
46;  Pitzel  v.  Schneider,  216  111.  87, 


749 


^  Gr)4]  Fl'TURE    INTERESTS  [Cn.    XXVI 

any  conceivable  combination  of  cirenmstances,  that  the  interest 
must  vest  in  the  time  prescribed.  It  is  not  sufficient  that  it 
may  vest  in  time  or  that  it  in  fact  turns  out  that  it  must  do 
so.  One  of  the  stock  cases  which  illustrates  this  corollary  is 
this:  Where  the  limitations  are  by  will  to  A  for  life,  then  to 
A's  wife  (meaning  any  wife  he  may  have  at  his  death)  for  life 
and  then  to  such  children  of  the  marriage  as  survive  the  wife. 
A's  wife  may  not  be  born  at  the  testator's  death  and  hence 
tlie  limitation  to  the  children  is  void  for  remoteness.'* 

§  654.  What  is  meant  by  "vest":  ^  "Vest"  means  "come 
into  possession"  in  the  modern  sense,  or  vest  in  possession  in 
a  certain  feudal  sense,  or  vest  in  interest  in  the  feudal  sense 
in  which  vest  is  used  in  defining  vested  remainders.  The  Rule 
is  satisfied  if  the  future  interest  must  vest  in  any  one  of  these 
ways  within  the  time  prescribed.  If  the  interest  must  come 
into  possession  in  the  modern  sense  within  the  proper  time, 
the  Rule  is  not  violated.  If  it  must  come  into  possession  in  a 
feudal  and  non-modern  sense  it  is  also  valid.  Thus,  if  the 
interest  be  a  freehold  of  inheritance  subject  to  a  term  of  one 
thousand  years,  it  vests  in  possession  in  the  feudal  sense  at 
once.  The  freeholder  subject  to  the  term  has  seisin."  Hence  the 
Rule  is  not  violated.  It  follov/s  that  legal  interests  after  a 
term,  however  long,  do  not  violate  the  Rule.'  So  if  the  future 
interest  comes  into  possession  at  too  remote  a  time,  but  within 
the  proper  time  vests  in  interest  in  the  feudal  sense  in  which 
a  remainder  vests  in  interest,  the  Rule  is  not  violated.*^  Vest- 
ing in  this  sense  means  coming  into  a  position  with  reference 
to  a  preceding   estate   of   freehold   where   the   future   interest 

97.     See  also  Eeid  v.  Voorliees,  216  « Ante,  §  32. 

111.   236,   243;    Johnson    v.    Preston,  ^  Eldred  v.  Meek,  183  111.  26,  36, 

226   111.   447;    Quinlan   v.  Wickman,  semble ;  Marsh  v.  Eeed,  184  111.  263, 

233  111.  39,  44;  Wood  v.  Wood,  276  274-275. 

111.  164    168.  ^  The    difference    between    vesting 

4  In  Wood  V.  Wood,  276  111.  164,  in  interest  and  vesting  in  possession 
171,  the  court  seems  to  have  inti-  is  clearly  recognized  by  our  Supreme 
mated  that  the  wife  referred  to  was  Court,  and  in  fact  correctly  applied 
the  wife  the  life  tenant  had  at  where  the  Rule  against  Perpetuities 
the  time  of  the  testator's  death.  is  involved.  Madison  v.  Larmon, 
In  that  case  the  gift  over  would  be  170  111.  65;  Eldred  v.  Meek,  183 
valid.  Ill-  26,  36;  Marsh  v.  E«ed,  184  111. 

5  Ante,  §§117,  118.  263,  275. 

750 


<Jll.    XX\'JJ  UL'LK    AGAINST    I'KHI'K'ir  ITI  Ks  f  ;i  n.lf; 

stands  ready  throughout  its  contiiiuaiK c  to  take  eit'eci  in  pos- 
session whenever  and  liowever  tlie  pi-eecding  estate  determines.'' 
When  the  remainder  must  fulfill  this  dcseription  in  th<.'  tiun 
prescribed,  the  Rule  is  not  violated.  'I'lie  feudal  conception  ol" 
vesting  in  interest  was  originally  applied  only  to  the  vesting 
of  legal  future  interests  by  way  of  remainder  after  a  fieehold. 
But  for  the  purpose  of  applying  the  Rule  against  Perpetuities 
the  same  conception  is  used  with  reference  to  ecjuitable  re- 
mainders in  land  and  legal  and  equitable  interests  in  personal 
l)roperty.  In  short,  for  th(>  purposes  of  applying  the  Rule 
against  Perpetuities  the  law  has  taken  over  the  feudal  concei)- 
tiou  of  a  vested  remainder  and  applied  it  to  future  interests 
in  any  kind  of  property.  If,  therefore,  an  interest  lie  limited 
to  A  for  life,  then  to  A's  unborn  son  for  life  and  then  to  B  if 
he  survive  A,  B's  ijiterest  may  not  vest  in  possession  till  too 
remote  a  time,  but  it  will  vest  in  interest,  if  a1  all,  on  A's  death 
and  the  Rule  against  Perpetuities  is  not  violated.^" 

§  655.  Other  corollaries  referred  to :  The  contingency  may 
be  postponed  for  a  number  of  lives  provided  they  are  all  in 
being  when  the  contingent  interest  is  created.^ ^ 

It  was  recognized  in  Smith  v.  McConnclW-  that  the  period 
of  a  life  in  being  and  twenty-one  years  may  be  extended  by 
at  least  two  periods  of  gestation. 

It  is  clear  also  that  the  time  within  which  the  future  interest 
must  vest  runs  only  from  the  testator's  death. ^^ 

§  656.  References  to  the  rule  as  stated  in  Bouvier's  Law  Dic- 
tionary: Our  Supreme  Court  has  sometimes  cited  with  ap- 
proval the  statement  of  the  Rule  given  in  Bouvier's  Law  Dic- 
tionary as  follows:  ''A  perpetuity  is  defined  to  be  a  limitation, 
taking  the  subject  thereof  out  of  commerce  for  a  longer  period 
of  time  than  a  life  or  lives  in  being  and  twenty-one  years  be- 
yond ;  and  in  case  of  a  posthumous  child,  a  few  months  more, 
allowing  for  the  time  of  gestation."^'*  The  logical  result  of 
this   definition   would   cause   the   Rule   against  Perpetuities   to 

^Ante.  §§25,  28,  308,  327,  328.  1=17  III.   135.  140,  141. 

10  Brown  v.  Brown,  247  111.  528,  i3  ingraham  v.  Ingfaham,  169  111. 
6  111.  Law  Rev.  269.  432,  460. 

11  Madison  v.  Larmon,  170  111.  i<  Waldo  r.  Cummings,  45  111.  421, 
65,  71;  Smith  r.  McConnell,  17  111.  426;  Hale  r.  Halo,  125  IlL  399,  409"; 
135,  140.  Hart  v.  Seymour,  147  111.  59S;  Luut 

751 


§  657]  FUTURE    INTERESTS  [Ch.    XXVI 

be  a  rule  invalidating  restraints  on  alienation.  It  is  clear  from 
Gray's  treatise  that  the  true  object  of  the  Rule  is  to  prevent 
the  creation  of  future  interests  on  too  remote  contingencies, 
and  that  its  effect  in  removing  practical  restrictions  on  the 
immediate  conveyance  of  property  is  only  an  incidental  result. 
This  position  our  Supreme  Court  now  seems  to  approve.^^  In 
Mettler  v.  Warner  ^^  the  court  declared  that  the  Rule  against 
Perpetuities  had  nothing  to  do  with  the  validity  of  postpone- 
ments of  enjoyment,  and  in  Kolb  v.  Landes'^''  the  court  de- 
clared that  there  was  no  inconsistency  between  the  definition 
in  Bouvier  and  that  of  Gray,  and  the  inference  is  that  Bouvier's 
statement  meant  what  Gra^^  said. 

§  657.  The  difficulty  in  most  cases  has  to  do  with  the  appli- 
cation of  the  rule  to  the  particular  limitation:  In  many  cases 
it  is  conceded  that  if  the  interest  is  contingent  upon  a  given 
event  the  Rule  is  violated.  If  it  is  not  subject  to  the  contingency 
but  vests  at  an  earlier  time  subject  only  to  a  postponement  of 
payment,  it  is  conceded  that  the  Rule  is  not  violated.  In  such 
cases  the  whole  contest  is  over  the  question  of  construction  re- 
lating to  the  time  of  vesting.  These  cases  have  been  dealt  with 
under  the  sections  where  questions  of  construction  relating  to 
vesting  are  considered.  ^^  In  other  cases  the  only  process  is 
that  of  analyzing  the  limitations  with  reference  to  the  Rule— 

V.    Lunt,    108    111.    307;     Howe    v.  lives  in  being  and  twenty-one  years, 

Hodge,    152    III.    252;     Bigelow    v.  and  in  case  of  a  posthumous  birth, 

Cady,  171  111.  229,  232;   Planner  •;;.  nine   months  more   after   the   termi- 

Fellows,  206  111.  136,  141;   Hender-  nation  of  the  life  estates." 

son  V.  Virden  Coal  Co.,  78  111.  App.  is  Howe  v.    Hodge,   152    111.    252, 

437;    Johnson   v.    Preston,    226    111.  274;     Ingraham    v.    Ingraham,    169 

447;     Branson    v.    Bailey,    246    111.  111.   432,   451;    Madison   v.   Larmon, 

490;   Dwyer  v.  Cahill,   228  111.  617,  170  111.  65,  71. 

623.                                              ,  16  243  111.  600,  609. 

In    Hart    v.    Seymour,    supra,    a  i^  277  111.  440,  447. 

definition   to    the   same    effect   from  is  Reid  v.  Voorhees,  216  111,   236, 

Andrews'      Law      Dictionary      was  ante,    §§499,    500,    510,    513,    527; 

quoted   with   approval.  Armstrong  v.  Barber,  239  111.   389, 

In  Andrews  v.  Andrews,  110  111.  ante,  §§499,  500,  509,  510,  516, 
223,  230,  the  court  stated  the  same  518,  523,  527,  528;  Mettler  v.  War- 
idea  in  this  way:  "The  law  will  ner,  243  111.  600,  ante,  §§499,  509, 
not  permit  estates  in  land  to  be  528;  O'Hara  v.  Johnston,  273  111. 
tied   up   longer    than    for   a   life   or  458,  ante,  §  527. 

752 


Ch.    XXVI]  RULE    AGAINST    PERPETUITIES  [§658 

applying  the  Rule  as  a  measure  to  the  limitations  which  are 
expressed. ^^  In  some  instances  this  is  a  process  requiring  care 
and  skill.2o 

TITLE    II. 

THE  RULE  AGAINST  PERPETUITIES  DISTINGUISHED  FROM  THE 

RULE  WHICH  MAKES  VOID  RESTRAINTS  ON  ALIENATION 

AND   PROVISIONS   REQUIRING   A   TRUSTEESHIP 

(OTHERWISE  VALID)    TO  BE  EFFECTIVE 

AT  TOO  REMOTE   A  TIME. 

§  658.  The  special  rule  as  to  restraints  on  alienation  and  pro- 
visions for  indestructible  trusts:  As  soon  as  any  restraints  on 
alienation  are  porniiltcd  llic  ((Ucslioii  arises,  how  long  will  they 
be  allowed  to  continue  or  at  what  time  in  the  future  may  they 
be  imposed.  The  English  judges  met  these  ((uestions  with  re- 
gard to  restraints  on  alienation  attached  to  the  separale  prop- 
erty- of  a  married  woman.  The  interest  vested  in  the  married 
woman  in  time  so  that  the  Rule  against  Perpetuities  was  not 
violated.  But  a  restraint  on  alienation  could  be  imposed  which 
might  be  in  operation  more  than  lives  in  being  and  twenty-one 
years  after  the  creation  of  the  interests.  Jessel,  M.  R.,  was 
right  when  he  said  that  the  Rule  against  Perpetuities  was  not 
violated.  His  opinion  was  that  since  restraints  on  alienation 
upon  a  married  w'oraan's  separate  property  were  an  exception 
to  the  invalidity  of  restraints  on  alienation  in  general,  there 
ought  to  be  no  restriction  upon  them.  But  he  yielded  to  deci- 
sions which  had  already  been  rendered  and  held  that  if  the  re- 
straint might  be  in  operation  more  than  lives  in  being  and 
twenty-one  years  after  the  creation  of  the  interest  it  would  be 
void.2i  This,  how-ever,  was  not  an  application  of  the  Rule  against 
Perpetuities.  It  was  the  application  of  a  special  rule  to  control 
the  creation  of  restraints  on  alienation  which  were  in  general 
valid. 

19  Johnson    V.    Preston,    226    111.  164;   Kolb  v.  Landes,  277  111.  440; 
447;   Dwycr  v.  Cahill,  228  III.  617;  Moroney  v.  Haas,  277  111.  467. 
Quinlan   v.    Wickman,   233    111.    39;  20  See  especially  Mettler  v.   War- 
Mettler    v.    Warner,    243    111.    600;  ner,  243  111.  600;  Comstock  i-.  Red- 
Branson    V.    Bailey,    246    111.    490;  mond,    252    111.   522;    Dime   Savings 
Comstock  V.  Redmond,  252  111.  522;  Co.  v.  Watson,  254  111.  419;  Moroney 
Dime    Savings   Co.    r.   Watson,   254  v.  Haas,  277  111.  467. 
111.  419;   Anderson  v.  Williams,  262  '^^  In  re  Ridley,    11   Ch.   Div.   645 
111.    308;    Wood    r.    Wood,    276    111.  (1879). 
Kales  Fut.  Int. — 48                           ^53 


§  658]  FUTURE    INTERESTS  [Ch.    XXVI 

With  the  advent  in  this  country  of  the  doctrine  of  Clafiin 
V.  Claflin,"  Avhich  permitted  trnsts  of  absolute  and  indefeasible 
equitable  interests  to  be  made  indestructible  for  some  period 
beyond  the  minority  of  the  beneficiary  -^  the  (lucstion  at  once 
arose,  for  what  period  might  the  trust  be  made  indestructible. 
Clearly  a  trust  to  last  "forever"  was  not  to  be  permitted;-"^ 
nor  was  one  which  was  to  continue  ''as  long  as  the  trustees 
saw  fit,"-^  or  for  an  indefinite  period.-*^  So  if  the  trust  was 
required  to  continue  during  the  lives  of  persons  unborn  at  the 
testator's  death, ^^  or  till  a  person  unborn  at  the  creation  of 
the  interests  reached  twenty-five."^*^  In  these  eases  the  provision 
for  the  continuance  of  the  trust  was  void.  Thus,  the  courts 
drifted  naturally  into  fixing  the  limit  of  time,  during  which 
the  trusteeship  of  an  absolute  and  indefeasible  interest  might 
be  required  to  continue,  at  lives  in  being  and  twenty-one  years 
after  the  creation  of  the  interests.  They  not  infrequently  called 
this  an  application  of  the  Rule  against  Perpetuities.  This  was 
natural  in  the  seventies  and  eighties.-^  Indeed,  it  was  natural 
enough  until  the  second  edition  of  Gray's  Rule  against  Per- 
petuities, which  appeared  in  1906.  There  it  was  pointed  out 
that  this  was  not  an  application  of  the  Rule  against  Perpetuities 
but  a  new  rule  required  to  control  the  length  of  time  a  trustee- 
ship may  be  continued. ^o  When  this  rule  is  violated  no  bene- 
ficial interests  are  void.  The  legal  title  conveyed  to  the  trustees 
is  not  invalidated.^^     Even  where  no  limit  is  placed  upon  the 

22  149  Mass.  19  (1889).  on  the  ground  that  it  was  to  last 

23  Post,  §§732  et  seq.  too  long.     It  would  seem  that  the 

24  Williams  v.  Herrick,  19  R.  I.  court  incorrectly  applied  the  rule 
197  (1895)  ;  Bigelow  v.  Cady,  171  which  was  recognized,  because  the 
111.  229.  child  in  question  was  a  life  in  being 

23  Slade    V.    Patten,    68    Me.    380  at  the  testator 's  death. 
(1878).  29  Slade  v.   Patten,   supra;  Penn- 

26WinBor  v.  Mills,  157  Mass.  362  sylvania    County    v.    Price,    swpra; 

(1892).  Winsor    v.    Mills,    supra;    Williams 

27  Pennsylvania    Co.    v.    Price,    7  v.  Herrick,  supra. 

Phila.   (Pa.)  465    (1870).  so  Gray's    Eule    against   Perpetui- 

28  Sadler  v.  Pratt,  5  Sim.  632  ties,  2nd  and  3rd  ed.,  §§  121f,  121g, 
(1833).  121h,  121i. 

In  In  re  Shallcross  's  Estate,  200  3i  Pulitzer  v.   Livingston,   89   Me. 

Pa.  122   (1901),  a  provision  that  a  359  (1896),  overruling  ou  this  point 

trust    should    continue    till    a   child  Slade  v.  Patten,  suyra. 
reached    twenty-flve    was    held    void 

754 


Ch.  XX\'JJ  rule  against  peri-etuities  [§659 

length  of  time  the  trusteeship  is  to  last,  yet  if  each  beneficiary 
has  power  to  terminate  the  trust  as  to  his  share  at  ajiy  time, 
the  rule  controling  the  length  of  time  a  trusteeship  may  be 
required  to  continue  is  not  violated.^-  When,  however,  as  in 
the  usual  real  estate  or  stock  trust,  the  trusteeship  is  to  last 
indefinitely  or  for  the  life  of  a  corporation  which  is  longer 
than  twenty-one  years,  and  the  beneficial  interests  ai-e  always 
absolute  and  indefeasible  and  the  trust  cannot  be  terminated 
earlier  by  any  individual  beneficiary,  but  only  by  a  vote  of  a 
proportion  of  them,  it  is  necessary  that  tlie  trust  should  be 
limited  to  lives  in  being  at  the  creation  of  the  trust  and  twenty- 
one  years  after  the  death  of  the  last  survivor  in  order  to  insure, 
for  that  period  at  least,  the  indestructibility  of  the  trust.  The 
omission  of  this  precaution  exposes  the  continuance  of  the  trust 
to  assault  by  a  single  beneficiary.^^ 

§659.  The  Illinois  Cases:  Bigelow  v.  Cady^"^  very  closely 
follows  the  earlier  Maine  case  of  Slade  v.  Patten. ^^^  In  the 
former  there  was  a  trusteeship  for  the  benefit  of  the  testator's 
two  daughters,  one  son  and  the  widow.  There  were  gifts  over 
in  these  words:  "In  case  of  death  of  either  of  the  four  above 
named  heirs  it  shall  go  (their  share)  to  the  heirs  of  the  de- 
ceased heir,  if  they  have  any;  if  not,  it  shall  be  equally  divided 
between  my  remaining  heirs  above  mentioned,  and  their  heirs 
forever,  share  and  share  alike.  If  my  wife,  Mary  J.  Mascall, 
dies  leaving  no  heirs  of  mine,  then  her  share  (one-fourth)  shall 
go  to  my  heirs  and  their  heirs  forever,  share  and  share  alike. 
The  court,  by  reference  to  other  clauses,  regarded  the  testator 
as  having  expressed  the  intention  that  the  trusteeship  should 
remain  indestructible  forever.  Whether  this  is  correct  or  not  is 
immaterial  in  determining  the  principle  upon  which  the  court 
proceeded.  The  effect  of  the  gift  over  was  to  reduce  the  gift 
to  the  two  daughters  and  the  son  to  a  life  estate,  because  the 
gift  over  is  on  no  other  contingency  except  their  death.3«    Hence 

32  Pulitzer    v.    Livingston,    supra.  ponsoious   that    a   great   many    such 

33  The  holding  to  the  contrary  in  trusts  had  been  made  without  any 
Howe  V.  Morse,  174  Mass.  491  provisions  limiting  the  time  they 
(1899),   may  perhaps  be   set  down  were   to   continue. 

to    the    fact    that    it    arose    in    the  34 171  m.  229. 

jurisdiction  of  the  so-called  Massa-  35  68  Me.  380. 

chusetts     or     Boston     Eeal     Estate  ^o  Ante,  §162. 
Trust  and  the  court  was  no  doubt 

755 


§  659]  FUTURE    INTERESTS  [Ch.    XXVI 

there  was  an  equitable  interest  in  the  two  daughters  and  the  son 
for  life  and  then  to  their  heirs,  which  by  the  rule  in  Shelley's 
case  would  give  them  the  fee.^'  Thus  the  same  situation  is 
present  as  was  before  the  Maine  court  in  Slade  v.  Patten — a 
trusteeship  to  last  forever  in  favor  of  adults  who  took  an  ab- 
solute and  indefeasible  fee.  As  in  Slade  v.  Patten  our  court 
held  the  provision  for  the  trusteeship  void,  insisting  that  it 
violated  the  Rule  against  Perpetuities.  Our  court  also,  as  in 
Slade  V.  Patten,  went  a  step  further  and  declared  that  no  title 
passed  by  the  will  to  the  trustees ;  ^^  that  there  was  an  intestacy 
and  that  the  legal  heirs,  who  were  the  two  daughters  and  the 
son,  should  have  partition.  The  holding  that  no  title  passed 
to  the  trustees  was,  it  is  believed,  strictly  erroneous.  But  no 
harm  was  done  because  the  beneficiaries  were  entitled  in  any 
event  to  have  the  trusteeship  terminated  at  once.  In  holding 
the  attempt  to  create  a  trust  of  an  absolute  and  indefeasible 
interest,  which  should  last  forever,  void,  the  court  was  entirely 
correct. 

In  Hart  v.  Seymour  s''  the  grantee  who  had  received  his  title 
from  the  trustees  was  attempting  to  redeem  from  a  sale  on  ex- 
ecution. One  of  his  contentions  was  that  the  sheriff's  deed 
was  void  because  the  deed  of  trust  under  which  the  trustee 
purported  to  act  was  a  perpetuity  and  void,  so  that  no  legal 
title  passed.  The  court,  however,  held  that  the  trustees  did 
have  title  in  fee  and  that  title  passed  to  the  grantee.  There 
was  no  provision  for  any  indestructible  trust.  The  court  re- 
garded the  trusteeship  as  a  mere  real  estate  trust  for  handling 
certain  subdivided  lands  for  sale  and  that  the  trusteeship  was 
to  last  not  longer  than  a  reasonable  time,  which  would  neces- 
sarily be  less  than  twenty-one  years.  The  property  was  to  be 
immediatsly  divided  and  immediately  sold.  For  aught  that 
appears  there  was  no  impediment  to  any  cestui  demanding  the 
termination  of  the  trusteeship  as  to  his  interest  at  once. 

In  Mettler  v.  Warner  "^^  the  trustees  were  directed  to  con- 
tinue the  trusteeship  during  a  term  commencing  at  the  testator's 
death  and  ending  fifteen  years  after  the  first  day  of  the  next 

37  Ante,  §  412.  39  147  111.  598. 

38  Lawrence  v.  Smith,  163  111.  40  243  111.  600,  5  111.  Law  Re*. 
149,    contains    dictum   to    the    same       251. 

effect. 

756 


ClI.    XXVI]  RULE    AGAINST    PERPETUITIES  [§659 

March  after  the  probate  of  the  will.  The  beneficial  interests 
created  were  held  to  be  valid.  The  trusteeship  itself  was  valid. 
So  far  as  the  invalidity  of  the  provision  for  the  continuance 
of  the  trusteeship  was  concerned  no  question  arose  and,  there- 
fore, was  not  passed  upon. 

In  Armstrong  ?-.  Barher-^^  tiie  trusteeship  was  to  continue 
for  various  periods  from  and  after  the  probate  of  the  will.  Again 
it  was  held  that  the  beneficial  interests  were  valid  and  that  the 
trusteeship  itself  was  valid.  Then  the  court  pointed  out  that 
if  the  provision  requiring  the  trusteeship  to  last  a  given  length 
of  time  after  the  probate  of  the  will  was  void,  it  was  not  by 
reason  of  an  application  of  the  Rule  against  Perpetuities,  but 
by  reason  of  the  application  of  another  and  different  rule  re- 
lating to  the  length  of  time  a  trusteeship  might  be  made  in- 
destructible. 

In  Wagner  v.  Wagner  ^-  the  trust  in  question  was  to  last  as 
long  as  the  trustee  saw  fit,  but  no  point  was  made  that  for 
that  reason  the  trusteeship  could  be  terminated  at  any  time 
by  one  having  an  absolute  and  indefeasible  interest. 

In  Guerin  v.  Gucrin^'-^  a  direction  that  the  beneficial  interest 
shall  always  remain  in  trust  was  held  to  mean  "remain  in  trust 
during  the  beneficiary's  life,"  and,  therefore,  was  not  void. 

In  O'Hare  v.  Johnston*"^  it  was  apparently  conceded  that 
the  provision  requiring  a  trust  to  continue  for  thirty  years  from 
the  testator's  death  might  be  void,  but  as  the  beneficial  interests 
w^ere  all  valid  and  no  beneficiary  with  an  absolute  indefeasible 
interest  was  claiming  any  right  to  terminate  the  trust,  no  tiues- 
tion  was  raised  as  to  the  invalidity  of  the  provision  for  the 
continuance  of  the  trust. 

In  Hopkinson  v.  Sivaim '^■'  the  provisions  for  a  trusteeship 
and  restraints  on  alienation  created  by  the  exercise  of  a  special 
testamentary  power  were  not,  when  referred  to  the  will  creating 
the  power,  to  continue  for  too  long  a  period  from  the  donor's 
death.  Hence  they  were  valid  so  far  as  the  special  rule  con- 
cerning the  length  of  time  they  were  permitted  to  last  was 
concerned. 

41  239  111.  389.  **  273  111.  458. 

<2  244  111.  101.  *^  284  111.  11. 

43  270  111.  239. 

757 


§660]  FUTURE    INTERESTS  [CH.    XXVI 

§  660.    Trusts  for  the  perpetual  care  of  a  cemetery  lot:    In 

the  absence  of  a  statute  express!}'  permitting  it,^^  a  trust  for  the 
perpetual  care  of  the  testator's  cemetery  lot  is  held  void.^'^ 
This  result  was  obtained  by  our  Supreme  Court  in  Mason  v. 
Bloomington  Library  Assns.'^^  It  may  be  assumed  that  any  trust 
for  a  similar  purpose,  which  is  expressly  required  to,  or  which 
pursuant  to  the  terms  of  the  attempted  trust,  may  last  longer 
than  lives  in  being  and  twenty-one  years  from  the  testator's 
death  will  be  void  in  toto.  It  is  usually  assumed  that  the  in- 
validity of  such  trusts  rests  upon  an  application  of  the  Rule 
against  Perpetuities.-*^  It  is  submitted  that  Mr.  Gray  is  entirely 
correct  in  denying  that  the  Rule  against  Perpetuities  has  any 
application,^"  That  rule  makes  void  future  interests  which  may 
vest  at  too  remote  a  time,  but  in  the  case  put  there  is  no  future 
interest  at  all.  Whatever  interest  exists  is  a  present  interest. 
The  vice  in  the  attempted  trust  is  that  it  is  an  effort  to  create 
a  trusteeship  which  must,  or  which  may,  according  to  the  terms 
of  the  gift,  last  or  remain  indestructible  for  longer  than  lives 
in  being  and  twenty-one  years  from  the  testator's  death.  An 
expressed  intent  to  create  such  an  indestructible  trust,  if  valid 
in  any  ease,  is  void  if  the  attempt  is  made  to  cause  it  to  last  for 
too  long  a  time.^i  When  there  is  a  cestui  que  trust,  however, 
the  expressed  intent  that  the  trusteeship  shall  be  kept  up  for 
too  long  a  time  is  merely  unenfor('ea])le  by  the  trustee.  It  is  left 
to  any  cestui  who  is  entitled  to  an  absolute  indefeasible  equitable 
interest  to  terminate  the  trusteeship  at  his  pleasure.  But  where 
there  is  no  cestui  to  terminate  the  trust,  as  in  the  case  of  a  trust 
for  the  care  of  a  cemetery  lot,  the  so-called  trusteeship  is  all 
there  is,  and  hence  the  courts  would  seem  to  have  no  alternative 
but  to  hold  the  whole  trust  void  from  the  beginning.  Any  other 
course  would  leave  the  trustee  free  to  carry  out  the  trust  which 
the  law  forbade  in  a  way  in  which  the  law  forbade.  The  prin- 
ciple announced  by  Gray  ^2  is  the  one  really  applicable.     This 

■»8  Iglehart  v.  Iglehart,  204  U.  S.  Rule  against   Perpetuities,  2iul  and 

478;   Rhode  Island  Hospital  Co.  v.  3id  ed.,  §899. 

Town  Council  of  Warwick,  29  R.  I.  i«  Rule   against    Perpetuities,   2nd 

393.  and  3rd  ed.,  §  898. 

<7See  eases  cited  in  Ames'  Cases  si  Armstrong   v.   Barker,   239    111. 

on  Trusts,  2nd  ed.  201,  note  1.  381,     ante,     §659.       Gray's     Rule 

<8  237    111.   442.     See   also   Burke  against  Perpetuities,  2nd  ed.,  §  121i. 

V.  Burke,  259  111.  262,  269-271.  52  Rule  against   Perpetuities,   2nd 

<9  See  cases  referred  to  in  Gray  '3  and  3rd  ed.,  §  121i. 

758 


ClI.    XXVIJ  KULE    AGAINST    PERPETUITIES  [§661 

the  learned  author  seems  to  have  overlooked,  because  he  supports 
the  holdiii}^  that  the  trust  for  the  perpetual  care  of  a  cemetery 
lot  is  void  solely  upon  the  ground  that  there  is  uo  cestui  at  all. 
"The  vice,"  he  says,  "in  such  devises  is  not  that  the  interests  of 
the  cestuis  que  trust  are  too  remote,  but  that  there  are  no  ccstuis 
que  trust  at  all."^-'  This  requires  him  to  say  that  all  the 
trusts  for  the  care  of  cemetery  lots,  or  like  objects,  where  there 
is  no  cestui  que  trust,  but  which  are  limited  to  last  for  not  to 
exceed  lives  in  being  and  twenty-one  years  from  the  testator's 
death,  are  void  also,  but  here  he  runs  contrary  to  the  authori- 
ties, such  as  they  are.'"*  It  seems  difficult  also  to  give  a  satis- 
factory reason  for  holding  a  trust  without  a  cestui  wholly  void 
for  that  reason.  The  trustee  has  the  legal  title.  P]quity  raises 
a  constructive  trust  for  the  settlor  or  testator's  heirs  or  next  of 
kin  or  residuary  legatee,  if  the  trustee  refuses  to  perform  the 
acts  specified.  But  why  should  it  interfere,  until  the  trustee  does 
so  refuse?  What  rule  of  public  policy  is  infringed  by  the  ear- 
rj'ing  out  of  the  objects  specified  by  the  testator?  It  is  believed 
that  none  has  ever  been  suggested.  Why,  then,  should  the 
trustee  not  be  permitted  to  do  what  the  testator  directs?  This, 
it  is  believed,  is  substantially  the  view  of  Professor  Ames.''"'  It 
is  submitted  that  it  is  sound  and  that  the  authorities  relied  upon 
by  him  should  be  followed. 

§  661.  Effect  on  other  provisions  of  holding  void  a  require- 
ment that  a  trust  should  remain  indestructible  for  too  long  a 
time:  Clearly  only  the  postponement  should  be  held  void.  Ii 
v.-as  urged  in  O'Hare  v.  Johnston-'^'  that  such  a  postponement 
was  introduced  for  the  protection  of  the  beneficiaries,  so  that  if 
void,  the  entire  scheme  of  the  testator  would  be  destroyed  and 
therefore  the  beneficial  interests  also  must  fail.  This,  however, 
the  court  denied.  In  S,lade  v.  Patten^''^  however,  a  valid  gift 
over  was  discarded  because  the  whole  trust  was  regarded  as  void. 
The  same  steps  precisely  were  taken  under  almost  identical  cir- 

53  Id.,  §  898.  ' '  The      Failure      of      the      '  Tildcn 

5*  Mussett     V.     Bingle,     W.      K.  Trust,'"  by  J.  B.   Ames,  5   Harv. 

[1876],    170;    Angus    v.    Noble,    7o  Law  Rev.  389.  397  ct  seq. 

Conn.  56;  Leonard  )-.  Ha^vorth,  171  "-^  "  The    Failure    of    the    'TilJeu 

Mass.  496,  semblc ;  Pirbright  v.  Sal  Trust,'  "  o  Harv.  Law  Rev.   3S9. 

wey,  W.   N.    [1896],   86.     See   also  so  273  111.  458. 

cases    cited     in     Ames'     Cases    on  ^' 6S  Mo.  380. 

Trusts,    2ud    ed.    201,    uote    2,   and 

759 


§  662]  FUTURE    INTERESTS  [Ch.    XXVI 

cumstances  by  our  court  in  Bigelow  v.  Cady.^^  The  reason  for 
this  step,  however,  was  not  clearly  stated  and  the  result  reached 
of  doubtful  propriety.  Where  the  trust  is  one  for  the  perpetual 
care  of  a  cemetery  lot  and  is  void  because  the  trust  may  last  too 
long,  there  is,  it  is  believed,  nothing  to  do  except  to  give  the 
heirs  of  the  testator  a  resulting  trust  at  once/'"'^ 

TITLE  III. 
INTERESTS  SUBJECT  TO  THE  RULE. 

§  662.  Legal  interests :  The  rule  against  Perpetuities  did 
not  commence  its  development  until  1680,  when  the  Duke  of 
Norfolk's  case  was  decided.*''^  It  was  not  finished  until  1833. "^^ 
It  was,  therefore,  proper  and  to  be  expected  that  contingent 
and  remote  future  interests  which  were  recognized  by  the  feudal 
land  law  and  which  had  been  subject  to  creation  unfettered  by 
an}'  rule  against  perpetuities  for  centuries  before  that  rule  ap- 
peared, were  not  within  the  rule.  Thus,  a  right  of  entry  for 
condition  broken  would  not  be  subject  to  the  rule.  Such  is  the 
actual  holding  of  our  Supreme  Court  in  Wakefield  v.  VanTas- 
sellS'^  So  possibilities  of  reverter  have  been  sustained  when,  if 
the  Rule  against  Perpetuities  had  applied  to  them,  they  must 
have  been  void.^^     Gray  insists  that  the  rule  should  apply  both 

58  171  111.  229.  might  have  happened  at  too  remote 

'59  Mason   v.  Bloomington  Library       a   time.      The   result  was   consistent 

Assn.,  237  III.  442.  with    such   a   holding,    but   it  .  went 

60  Ante,  §  115.  upon  the  ground  that  the  condition 

61  Ante,  §  116.  had  not  been  fulfilled.     No  mention 

62  202  111.   41.      See   also  the   fol-       was  made  of  the  Rule  against  Per- 
lowing  cases  where  if  the  Rule  had       petuities. 

been  apj)lied  the  right  of  entry  for*  In  Voris  i;.  Renshaw,  49  111.  425, 

condition    broken    would    have    been  the   condition   must   have   happened, 

held   void,   but   where    the   right   of  if  at  all  in  the  proper  time,  so  there 

entry   was    sustained   without,   how-  was  no  occasion  for  considering  the 

ever,   any   consideration   of   whether  application  of  the  Rule, 
the    Rule    against    Perpetuities    ap-  63  Mott  v.  Danville  Seminary,  129 

plied:    Price  v.  School  Directors,  58  111.  403. 

111.  452;  Gray  v.  Chicago,  M.  &  St.  The  result  actually  reached  in 
P.  Ry.,  189  111.  400;  Lyman  v.  Sub-  Presbyterian  Church  v.  Venable,  159 
urban  Railway  Co.,  190  111.  320;  20  111.  215,  might  have  gone  upon  the 
Law  Quart.  Rev.  291,  ground  that  the  possibility  of  re- 
in Board  of  Education  v.-  Trus-  verter  was  void  for  remoteness..  In 
tees,  etc.,  63  111.  204,  the  condition  fact,    however,    this    view    was    not 

760 


ClI.    XX\' IJ  ItULE    AGAINST    PERPETUITIES  [§  662 

to  possibilities  of  reverter  "•'  and  to  rights  of  entry  for  condition 
broken. •••'    The  English  cases  support  its  application  to  the  lat- 
ter. "^^    It  is  conceded,  however,  that  the  law  is  otherwise  in  tn 
country  generally.''^    'I'his  is,  it  is  submitted,  if  not  an  absolutely 
necessary  view,  at  least  a  correct  one. 

The  common  law  contingent  remainder,  which  was  subject  to 
the  common  law  rule  of  destructibility,  had  existed  for  over  two 
centuries  before  the  Duke  of  Norfolk's  case.  There  is  .some 
opinion  to  the  effect  that  the  Rule  against  Perpetuities  never 
applied  to  such  remainders."*^  The  moment,  however,  that  the 
rule  of  destructibility  is  partially  abrogated,  as  it  was  by  the 
Contingent  Remainders  Act  of  1845,  the  contingent  remaindei- 
ceases  to  be  the  common  law  interest  which  it  was  before,  because 
it  may,  under  such  act,  take  effect  as  a  springing  executory  in 
terest  after  the  termination  of  the  preceding  estate  of  freehold 
Under  these  circumstances  the  Rule  against  Perpetuities  is  ap- 
propriately applied  to  it.  The  recent  English  cases,  which  ap- 
pear to  hold  that  contingent  remainders  are  subject  to  the  Rule 
against  Perpetuities,^^  were  decided  with  reference  to  contingent 
remainders  to  which  the  English  Contingent  Remainders  Act  of 
1845,  at  least,  applied.  They  do  not,  therefore,  sustain  the 
proposition  that  the  Rule  against  Perpetuities  would  apply  to 
the  common  law  contingent  remainder  which  continued  to  be 
fully  subject  to  the  rule  of  destructibility.^^ 

suggested   and  the  court   found   an-  Duval,      John      Hodgson,      Samuel 

other  ground  for  the  result  reached.  Duckworth,  P.  B.  Brodie  and  John 

6-*  Eule        against        Perpetuities,  Tyrrell),     (6)     Lord    St.    Leonards, 

§312.  (7)    Mr.  Joshua  Williams,    (8)    Mr. 

«5  7(Z.,  §§299  et  seq.                 '  George  Sweet,   (9)  Mr.  Leake,  (10) 

«« Id.,  §  302.  Mr.   Challis. ' '     See  also   Challis  on 

07  M.,  §§304  et  seq.  Eeal  Property,  2nd  ed.  183-186. 

68  In  "Perpetuities,"   by  Charles  09 /,i  re  Frost,   43   Ch.  Div.   246; 

Sweet,  15  Law  Quart.  Kev.   71,  8.1,  In  re  Ashforth's  Trusts,  21  T.  L.  R. 

the    learned    author    says:       "The  329  (1905). 

doctrine  that  contingent  remainders  "i  In  Madison  v.  Larmon,  170  111. 

are  not  subject  to  the  modern  Eule  65,  it  seems  to  have  been  assumed 

against  Perpetuities  is  supported  by  that    if    the    contingent    future    in- 

the     authority     of     the      following  terest      after      the      seventeen     life 

judges  and  writers:   (1)  Mr.  Fearne,  estates   had   been   too  remote  under 

(2)    Mr.    Charles    Butler,    (3)    Mr.  the   Rule   it    would   have   been   void 

Preston,   (4)    Mr.  Burton,    (5)    The  even    though    it    were    regarded    as 

Eeal  Property  Commissioners  (Lord  destructible.      For    the    controversy 

Campbell,     W.    H.     Tinney,     Lewis  which  has  arisen  on  this  point,  see 

761 


§  663]  FUTURE    INTERESTS  [Ch.    XXVI 

Springing  and  shifting  future  interests  by  way  of  use  '-  or 
executory  devise  ^^  are,  of  course,  subject  to  the  rule. 

§663.  Equitable  interests:  The  rule  applies  to  equitable 
interests."^ 

§  664.  Contracts — Bauer  v.  Lumaghi  Coal  Co."-'  and  Lon- 
don &  S.  W.  Ry.  V.  Gomm:  ^'^  It  is  believed  that  the  ease  of 
Bauer  v.  Lumaglii  Coal  Co.,  decided  by  our  Supreme  Court, 
affords  an  interesting  contrast  with  the  decision  of  the  Court 
of  Appeal  in  London  &  8.  W.  Ry.  Co.  v.  Gomm.  In  both  cases 
a  bill  for  specific  performance  of  a  written  contract  for  the 
sale  of  land  was  filed  by  the  purchaser.  In  both  cases  the  con- 
tract sought  to  be  enforced  was  one  which  gave  the  purchaser, 
his  heirs  and  assigns,  a  right  to  a  conveyance  at  a  possibly  remote 
time  in  the  future.  In  the  Illinois  case  the  contract  provided 
that  the  seller  should  convey  whenever  the  purchaser,  his  heirs 
or  assigns,  should  demand  the  same  in  writing  and  pay  the  pur- 
chase money.  In  the  Gomm  ease  the  transfer  was  to  be  made 
whenever  the  land  subject  to  the  contract  might  be  required  for 
the  railway  works  of  the  purchaser. 

The  reasons  given  for  the  decision  in  the  two  cases  were 
widely  divergent.  The  Court  of  Appeal,  at  that  time  led  by  Sir 
George  eJessel  M.  K.,  rested  its  decision  in  the  Gomm  case  upon 

14  Law  Quart.  Rev.  133,  234;  15  72  in  Thomas  v.  Eekard,  8S  111. 
id.  71;  20  id.  289;  49  Solic.  Jour-  593,  a  conveyance  was  conditioned 
nal,  397;  Gray's  Rule  against  Per-  not  to  take  effect  till  a  town  plat 
petuities,  §§  285  et  seq.  was  recorded.  In  ejectment  it  was 
The  rule  against  double  possibili-  held  simply  that  the  condition  pra- 
ties if  any  such  rule  can  be  said  to  cedent  was  not  performed.  If  the 
liave  existed  (Gray's  Rule  against  interest  created  be  regarded  as  a 
Perpetuities,  3rd  ed.,  §§  121-131,  931  springing  future  interest  then  it 
et  seq.),  was  the  common  law  rule  might  have  been  held  that  even  if 
(separate  from  the  Rule  against  the  condition  had  been  performed 
Perpetuities)  which  controlled  the  the  future  interest  was  too  remote. 
creation  of  contingent  remainders.  73  Post  v.  Rohrbach,  142  111.  600. 
It  might  perhaps  be  plausibly  sug-  ^4  Howe  v.  Hodge,  152  111.  252, 
gested  that  if  contingent  remain-  274;  Bigelow  v.  Cady,  171  111.  229, 
ders  were  subject  to  such  a  rule,  233;  Lawrence  v.  Smith,  163  111. 
that  was  a  reason  why  the  modern  149;  Eldred  v.  Meek,  183  111.  26; 
Rule  against  Perpetuities  should  be  Nevitt  i;.  "Woodburn,  190  111.  283; 
applied  in  its  place  as  a  better  rule  Owsley  v.  Harrison,  190  111.  235. 
to  accomplish  what  the  older  com-  ^5  209  111.  316. 
mon  law  rule  was  designed  to  effect.  'o  20  Ch.  Div.  562. 

762 


CU.    XXVI]  RULE    AGAINST    PERPETUITIES  [§  665 

the  ground  that  the  purchaser  by  the  contract  had  a  future  in- 
terest in  land  which  -was  as  much  subject  to  the  Rule  against 
Perpetuities  as  a  springing  limitation  by  way  of  devise  or  use, 
and  that  the  interest  was  void  because  the  contingency  upon 
which  it  was  to  vest  might  happen  at  too  remote  a  time.  The  Illi- 
nois Supreme  Court  placed  its  decision  upon  the  ground  that 
the  contract  was  lacking  in  mutuality.  By  this  it  clearly  meant 
that  the  contract  was  too  unfair,  too  one-sided,  too  unconscion- 
able for  a  court  of  equity  to  enforce."^ 

There  certainly  appears  to  be  but  a  shade  of  difference  in  the 
cases.  In  both,  the  seller  has  a  legal  and  beneficial  ownership 
and  in  botli  the  situation  will  be  changed,  i.  e.,  another  will  have 
the  beneficial  ownership  and  a  right  to  call  for  the  legal  title — 
upon  the  happening  of  a  contingency  in  the  future.  There  is 
only  this  slight  difference  in  the  contingencies:  In  the  Gomm 
case  the  purchaser  has  a  little  less  control  over  its  happening 
than  in  the  Illinois  case.  In  the  former  the  land  must  become 
necessary  to  the  biisiness  of  the  purchaser.  In  the  latter  only 
notice  in  writing  need  be  giveL  and  the  consideration  tendered. 
It  is  not  perceived,  however,  that  to  this  difference  legal  conse- 
quences attach. ■^^ 

§  665.  Options  to  purchase:  If  the  purchaser  had  paid  the 
purchase  price  in  advance  and  had,  under  his  contract,  a  right 
to  call  for  a  conveyance  at  any  time  upon  giving  notice,  it  could 
hardly  be  contended  that  the  Rule  against  Perpetuities  would 
be  violated.  In  such  a  case  the  purchaser  would  be,  in  fact,  the 
dominus  of  the  property.  He  would  not  have  a  future  interest, 
but  a  present  absolute  interest. 

Such  is  the  reasoning  upon  which  a  general  power  to  appoint 
by  deed  or  will,  that  may  in  fact  be  exercised  at  too  remote  a 

77  For    another    ground    of    deoi-  in    writing.      Then,    too,    the    court 

sion   the   court    declared    that    there  speaking    of    the    long   delay,    said: 

was  unexplained  laches  on  the  pari  ' '  The    parties    to    the    contract    did 

of  the  purchaser.     This  is   rather  a  nothing      toward     its      enforcement 

remarkable     position,     because     the  until    after    the    death    of    George 

contract    was    executed    in    October,  Bauer,  a  year  and  a   half  after   it 

1897    and   suit   was   begun   in   Sep-  was  executed. ' ' 
tember,     190.3.       Six     years     delay  78  Woodall      i".     Clifton,      L.      K. 

seems    hardly    to    amount    to   laches  [1905]    2    Ch.    2o7;    39    Law    .Jour- 

in   the   enforcement  of   such   an  op-  nal    644;    18    Harv.   Law   Rev.    379; 

tion    contract    which    was    not    en-  42   Solic.   Journal,   628. 
forcible  at  all  till  demand  was  made 

763 


§  665]  FUTURE    INTERESTS  [Ch.    XXVI 

time,  but  which,  in  proper  time  comes  into  the  hands  of  a  donee 
in  esse  and  is  not  subject  to  any  condition  precedent  to  its  exer- 
cise other  than  the  mere  will  of  the  donee,  avoids  the  objection 
of  remoteness. "9  The  two  cases  are  not  unlike.  In  form  at  least, 
the  exercise  of  the  power  creates  a  springing  or  shifting  interest. 
So,  according  to  Jessel's  reasoning,^"  the  contract  to  purchase 
gives  to  the  purchaser  in  form,  an  interest  in  real  estate,  which, 
for  the  purpose  of  applying  the  Rule  against  Perpetuities,  is  not 
different  from  a  springing  future  interest.  If,  then,  attention 
be  paid  to  the  fonn  alone,  the  fact  that  the  power  may  be  exer- 
cised at  too  remote  a  time  means  that  the  springing  or  shifting 
interest  may  vest  at  too  remote  a  time.  So  with  the  contract  for 
purchase.  In  substance,  however,  as  soon  as  the  right  to  exer- 
cise the  general  power  becomes  complete  in  the  donee,  he  is  in 
the  same  position  as  if  he  had  the  fee,  and  this  is  so  although, 
until  the  appointment,  the  beneficial  interest  is  enjoyed  by  an- 
other, who  holds  the  legal  or  equitable  title.  In  the  case  of  a 
contract  to  purchase,  the  purchaser  may,  in  the  same  way,  be 
substantially  the  owner,  though  the  title  be  in  another  and  an- 
other have  the  beneficial  enjoyment  of  the  land  till  the  purchaser 
actually  calls  for  the  conveyance.^^ 

Whether,  however,  such  a  condition  of  substantial  ownership 
in  the  purchaser  actually  exists,  must  depend  upon  the  terms 
and  conditions  of  the  contract.  They  may  be  such  that  the  pur- 
chaser cannot  be  regarded  as  in  substance  at  once  the  owner,  or 
as  becoming  substantially  the  owner  within  the  proper  time.  In 
such  a  case  the  right  to  call  for  a  conveyance  would  be  as  objec- 
tionable as  a  special  power  which  might  be  exercised  at  too  re- 
mote a  time.  The  real  question,  therefore,  is:  When  does  the 
purchaser  become  substantially  the  owner? 

It  is  believed  that  the  purchaser  may  well  be  substantially  the 
owTier,  though  there  are  some  conditions  precedent  to  perfect- 
ing his  right  to  a  conveyance.     It  is  believed  that  the  test  of 

7»Bray  v.  Bree,   2   CI.  &  F.  453  of   authorities.      Also   Blaekmore   v. 

(1834)  ;  7w  re  Teague's  Settlement,  Boardman,    28    Mo.    420.      But    see 

L.  R.   10   Eq.   564    (1870);    Gray's  contra,  Morrison  v.  Rossignol,  5  Cal., 

Rule  against  Perpetuities,  §  477.  64,  65.    For  the  construction  of  such 

80  London  &  S.  W.  Ry.  Co.  v.  covenants  see  article  entitled 
Gomm,   20  Ch.  Div,   562.  "  Leases— Covenants     of     Perpetual 

81  See  Gray's  Rule  against  Per-  Renewal,"  by  I.  Homer  Sweetser, 
petuities,  §230,  note  2,  for  citation  13  Harv.  Law  Rev.  472. 

764 


Ch.    XXVI]  RULE    AGAINST    PERPETUITIES  [  ij  666 

whether  the  condition  precedent  is  one  which  prevents  the  pur- 
chaser from  being  in  substance  the  owner,  lies  in  the  extent  of 
the  control  which  the  purchaser  has  over  the  perfonnance  of  the 
condition  and  the  extent  of  the  burden  of  the  condition.  Thus, 
it  would  appear  clear  that  in  the  Gomm  case,  where  the  pur- 
chaser could  only  demand  a  conveyance  when  it  needed  the  land 
in  its  business,  the  happening  of  the  condition  precedent  was 
too  little  within  its  absolute  control  to  enable  the  court  to  say 
that  the  purchaser  was  at  once  dominus.^^  So,  where  the  pur- 
chaser must  tender  the  full  cash  purchase  price,  the  burden  is 
too  great  to  enable  one  to  say  that  he  is  to  all  practical  pur- 
poses the  present  owner.^^  On  the  other  hand,  it  seems  to  be 
conceded  that  when  the  right  of  renewal  of  a  lease  is  limited  to 
arise  only  on  giving  notice  within  a  particular  time  and  paying 
a  specified  fine,  no  question  of  remoteness  arises.^* 

The  difficulty,  on  principle,  which  at  least  one  writer  has  had 
with  this  result  ^^^  disappears  when  it  is  perceived  that  only  a 
practical  question  of  the  extent  of  the  control  by  the  lessee  and 
the  burden  of  the  condition  precedent  are  involved.  Are  these 
such  that  the  lessee  can  be  regarded  as  now  dominus  of  a  long 
term  ?  The  performance  of  the  condition  is  entirely  in  the  con- 
trol of  the  lessee,  and  the  burden  of  the  fine  will  depend  upon  its 
amount.  It  may  conceivably  be  so  small  as  not  to  prevent  the 
lessee  from  being  dominus  of  a  present  long  term  lease.^* 

TITLE  IV. 

INTERESTS    LIMITED    TO    TAKE    EFFECT    "WHEN    DEBTS    ARE 
PAID,"  "A  TRUST  EXECUTED,"  OR  "A  WILL  PROBATED." 

§  666.  Introductory:  Whenever  language  introducing  a 
gift  seems  to  provide  that  the  gift  shall  take  effect  upon  the 
happening  of  an  event  which  may  by  possibility  not  occur 
until  too  remote  a  time — as  for  instance,  "when  a  will  is  pro- 
bated" or  "debts  paid"  or  an  estate  "settled"  or  an  executory 

82  The  same  may   be  said  of  tlie  ss  Bauer  v.  Lumaghi  Coal  Co.,  209 

condition  in  Birmingham   Canal  Co.  111.  316,  ante,  §  664. 

V.  Cartwright,  11  Ch.  Div.  421,  and  8*42  Solie.  Journal,  628. 

the  decision,  therefore,  in  that  case  85  Mr.    T.    Cyprian    Williams,    42 

in  favor  of  the  purchaser  is  clearly  Solic.  Journal,  628. 

wrong    and    properly    overruled    by  86  Mr.   T.   Cyprian   Williams'   dis- 

the  Gomm  case.  tinetion     (42    Solic.    Journal,    628), 

765 


§  667]  FUTURE    INTERESTS  [Cn.    XXVI 

trust  "executed  and  performed" — it  is  at  ouce  suggested  that 
the  gift  is  void  for  remoteness.  Before  a  conclusion  can  be 
reached,  however,  a  number  of  important  distinctions  must  be 
made. 

§  667.  Suppose  a  term  is  given  to  trustees  upon  trust  to  pay 
debts  and  subject  to  the  term  the  property  is  devised  to  A  ab- 
solutely: In  this  case  A  has  a  present  interest  subject  to  the 
term.  It  is  usually  called  a  "vested"  interest.  It  is  not  void  for 
remoteness.^' 

§  668.  Suppose  the  fee  is  given  to  trustees  upon  trust  to 
pay  debts  ^^"^  and  when  debts  are  paid  the  land  is  devised  to  A 
absolutely — Is  A's  interest  legal  or  equitable?  Since  the  devise 
is  direct  to  A  with  no  suggestion  that  the  trustees  are  to  termi- 
nate the  trust  by  a  conveyance  to  A,  it  might  be  thought  that  A 's 
estate  was  a  legal  future  interest.  If  so  taken  it  would  (suppos- 
ing the  trustee  still  to  have  the  fee  simple)  be  an  executory  de- 
vise cutting  short  the  legal  fee  of  the  trustee.  On  the  other  hand, 
if  the  language  be  taken  as  requiring  a  conveyance  from  the 
trustee  to  A  of  what  is  left  when  the  debts  are  paid,  A's  interest 
will  be  equitable.  It  is  settled  that  the  latter  is  the  proper  con- 
struction to  be  given  to  the  gift  to  A.^^  It  is  not  believed  that 
there  is  one  construction  at  law  for  the  gift  to  A  in  the  case  put 
and  another  in  equity.  The  principles  of  construction  applicable 
are  the  same  in  both  courts.  Each  should  reach  the  same  result. 
In  a  court  of  law  A  should  not  be  allowed  to  maintain  ejectment, 
because  the  legal  title  would  be  outstanding  in  the  trustee.  It 
is  possible  that  the  courts  of  law  and  the  courts  of  equity  might 
reach  different  results  and  that,  in  a  system  of  separate  law  and 
chancery  courts  with  no  common  court  of  appeal,  two  different 
rules  might  actually  be  established.  In  that  event  the  rule  of 
equity  would  probablj'  prevail  by  reason  of  the  use  of  the  in- 
between  an  option  to  purchase  and  ss  Observe  that  by  the  general  rule 
a  covenant  for  renewal  seems  un-  all  trusts  to  pay  debts  give  the 
satisfactory  since  it  takes  account  trustee  a  fee.  Hawkins  on  Wills, 
only  of   the   difference   in   form   be-       151. 

tween  the  two  and  fails  to  observe  89  Morgan    v.    Morgan,    20    K.    I. 

that  the  true  distinction  is  whether       600 ;   Gray  's  Rule  against  Perpetui-  • 
the  purchaser  has  in  substance  com-       ties,    §415;    Lewis   on   Perpetuities, 
pletc  control  of  the  title.  626  et  seq.;  Hawkins  on  Wills,  152. 

87  Gray's    Rule    against    Perpetui- 
ties, §415.     Ante,  §  654. 

'       766 


Ch.    XX\'iJ  RULE    AGAINST    PEatPETUITIES  f§669 

junction  bj'  the  court  of  chancery  to  enjoin  the  bringing  or 
prosecution  of  suits  of  law  based  upon  the  interpretation  given 
by  courts  of  law.  Under  the  English  Judicature  Act  of  1873  ^'* 
the  rule  in  equity  would  prevail.  In  American  jurisdictions 
with  a  single  court  of  last  resort,  one  would  expect  the  rule  of 
equity  to  be  taken  as  the  correct  rule  for  law  and  equity  alike. 

§669.  Suppose  A's  interest  be  equitable:  If  a  fee  be  de- 
vised to  trustees  upon  trust  to  pay  debts  ami  "after  debts  are 
paid,"  or  "when  debts  are  paid,"  or  "subject  to  the  payment 
of  debts, ' '  an  absolute  equitable  interest  is  devised  to  A,  so  that 
A  has  the  right  to,  and  indeed  must,  call  upon  the  trustee  for 
a  conveyance  of  the  legal  title  in  order  to  close  the  tru.st,  then 
it  seems  settled  that  the  words  "after  debts  are  paid,"  or  "when 
debts  are  paid,"  or  "subject  to  the  payment  of  debts,"  refer 
not  to  the  time  when  the  ultimate  gift  is  to  vest  in  interest,  but 
merely  the  quantum  of  estate  which  A  is  to  take  and  the  duties 
which  the  trustee  is  to  perform.  If  this  is  not  a  literal  or  pri- 
mary meaning  of  the  words  used  it  is  at  least  a  plausible  sec- 
ondary meaning,  because  the  gift  to  A  is  absolute  and  subject 
to  no  other  event  than  the  payment  of  debts.  The  reference  to 
that  payment  is  naturally  a  reference  to  the  fact  that  the  debts 
are  first  to  be  paid  and  that  A  is  to  have  what  is  left.  In  short, 
A  has  the  ivhole  interest  immediately,  less  the  amount  needed 
to  pay  debts.  Hence  A  has  an  immediate  equitable  fee  which 
is  not  void  for  remoteness.^^  So,  if  the  fee  is  devised  to  trustees 
upon  trust  to  sell  and  "when  the  sale  is  made"  to  pay  the  pro- 
ceeds to  A  absolutely,  it  has  been  held  that  "when  the  sale  is 
made"  would  refer  merely  to  the  duties  which  the  trustees 
were  to  perform  and  the  character  and  quantnm  of  the  estate 
they  were  to  handle  and  not  at  all  to  the  time  when  the  gift  to  A 
would  vest  in  intercst.^- 

If  we  could  generalize  from  the  above  cases,  we  should  have 
a  formula  something  like  this :  Words  which  introduce  a  gift 
that  is  subject  to  the  fulfilment  of  trusts  and  which  refer  to  the 
accomplishment  of  the  purpose  of  a  trust  which  is,  in  the  usual 
case,  quickly  executed  and  incidental  to  the  determination  of  a 

90  Sees.  24,  25.  9,  20;   Hawkins  r.  Bohling,  168  111. 

91  Bacon  v.  Proctor,  Turn.  &  R.  214,  220;  Bates  v.  Spooner,  75 
:\1;    Morgan    r.    Morgan,   20    R.    I.       Conn.  501. 

fiOO;  Rcnfiold  7-.  Oli'ott,  120  111.  :\(V2,  92  Bates  v.  Spooner.  xiipra. 

.".76;     DiickiM-    /•.    Uiiriilinm,    IH".    111. 

767 


§  669]  FUTURE    INTERESTS  [Ch.    XXVI 

residue  to  be  distributed,  may  be  construed  as  referring  to  the 
quantum  of  the  estate,  the  duties  of  the  trustees  and  the  priority 
of  the  object  of  the  trusts  over  those  ultimately  to  take,  rather 
than  the  time  when  the  ultimate  gift  is  to  vest  in  interest.  Thus, 
suppose  the  fee  were  given  to  trustees  upon  trust  ' '  to  make  suit- 
able provision  for  the  care  of  the  testator's  cemetery  lot  in  a 
certain  cemetery  [which  by  its  charter  could  take  deposits  upon 
trust  for  such  perpetual  care]  and  when  this  trust  shall  have 
been  executed  and  performed  then  to  A  absolutely."  Why 
should  not  the  words  "when  this  trust  shall  have  been  executed 
and  performed"  be  construed  as  referring  to  the  quantum  of 
estate  and  the  duties  of  the  trustees  and  the  fact  that  the  pro- 
vision for  the  cemetery  lot  is  to  have  priority  over  the  persons 
ultimately  to  take,  and  not  at  all  to  the  time  of  the  vesting  in 
interest  of  the  gift  to  A  ?  If  that  position  were  taken  A  would 
have  an  immediate  absolute  equitable  interest  on  the  death  of 
the  testator  subject  merely  to  the  duty  of  the  trustees  to  make 
the  provision  for  perpetual  care.  A's  gift,  therefore,  would  not 
be  void  for  remoteness. 

The  cases,  so  far  as  the  writer  knows,  neither  affirm  nor  deny 
the  propriety  of  such  a  generalization.  In  Oddie  v.  Brown  ^^ 
the  testator  devised  the  residue  of  his  estate  to  trustees  to  invest 
and  suffer  the  interst  to  accumulate  until  the  principal  and 
accumulations  "should  amout  to  £3,000,  or  thereabouts,"  and 
"when  and  so  soon  as  the  principal  sum  and  interest  should 
amount  to  the  sum  of  £3,000,  or  thereabouts,"  then  to  pay  over 
the  dividends  to  certain  persons  for  life  and  the  principal  to 
others.  The  Vice  Chancellor  [Sir  John  Stuart]  held  the  gifts 
over  void  for  remoteness.  This  was  reversed  in  the  Court  of 
Appeal.  But  the  judges  differed  in  their  reasoning.  The  Lord 
Chancellor  [Lord  Chelmsford],  while  holding  that  the  ultimate 
gift  could  not,  upon  the  language  used  and  apart  from  the  Thel- 
lusson  Act,  vest  in  interest  until  the  accumulation  was  made,  yet 
held  the  ultimate  gifts  valid,  because  by  the  Thellusson  Act  the 
accumulations  must  stop  in  twenty-one  years  and  the  devisees 
were  thereupon  entitled  to  vested  interests  in  the  fund  accumu- 
lated. Lord  Justice  Turner,  who  agreed  in  the  conclusion  reached 
by  the  Lord  Chancellor,  placed  his  opinion  on  the  ground  that  the 
words  "when  and  so  soon  as  the  principal  and  interest  should 

93  4  De  G.  &  J.  179. 

768 


ClI.    XXVI  I  RULE    AGAINST    PERPETUITIES  I  §  670 

amount  to  the  sum  of  £3,000,  or  thereabouts,"  referred  merely  to 
the  duties  of  the  trustees  and  were  not  at  all  effective  to  intro- 
duce a  contingency  into  the  gift  after  the  accumulations.     In 
short,  his  view  was  that  the  words  importing  the  contingency 
should  be  construed  to  refer  only  to  the  quantum  of  estate  which 
the  trustees  were  to  obtain  by  the  accumulations  and  not  to  the 
time  when  the  ultimate  gifts  were  to  vest  in  interest.    This  makes 
two  judges  to  one  on  the  proposition  that  apart  from  the  Thellus- 
son  Act  the  ultimate  gifts  did  not  vest  in  interest  until  the  accu- 
mulations had  been  made  as  provided.    It  appears,  however,  that 
after    thirty-seven    years    of    accumulations    the    total     fund 
amounted  to  only  £1,G00,  so  that  it  may  have  been  inferred  that 
the  testator  must  have  had  in  mind  when  his  will  was  made,  and 
expressed  definitely,  that  there  should  be  a  long  period  of  ac- 
cumulations.    This  would  prevent  the  application  of  the  gener- 
alization stated  at  the  commencement  of  this  section,  for  that  is 
confined  to  cases  where  the  trusts  are  of  a  character  in  the  usual 
case  quickly  executed  and  incidental  to  the  determination  of  a 
residue  to  be  distributed.     The  result  reached  by  the  court  in 
Siedler  v.  Sijms  ^^  may  be  explained  in  the  same  way.     There 
the  gift  was  to  trustees  of  bank  stock  upon  trust  to  collect  during 
the  corporate  existence  of  the  bank  under  its  present  charter,  or 
by  virtue  of  any  renewals  or  extensions  thereof,  the  dividends, 
and  to  pay  them  equally  among  all  the  employes  of  the  bank  who 
may  be  employed  therein  for  the  time  being,  with  an  ultimate 
gift  "in  case  said  bank  shall  by  dissolution  or  otherwise  cease 
to  exist"  to  the  Bank  Clerks'  iMutual  Benefit  At5Sociation.     It 
was  held  that  the  gift  over  was  void.    The  trust  here  is  one  which 
is  in  terms  expressed  to  last  for  a  long  time  and  not  improbably 
a  long  time  beyond  lives  in  being  and  twenty-one  years. 

§  670.  Suppose  legacies  are  bequeathed  to  several  and  the 
residue  of  the  testator's  personal  estate  alone  is  bequeathed 
to  A  "when  the  testator's  debts  and  legacies  are  paid  and  the 
estate  settled":  In  the  cases  noted  ante,  §  669,  where  the  ulti- 
mate gift  was  sustained,  there  was  a  trusteeship,  the  trustee  tak- 
ing the  fee  or  absolute  interest.  Suppose  that  legacies  are  be- 
queathed to  several  and  the  residue  of  personalty  alone  is  be- 
queathed to  A  "when  debts  and  legacies  are  paid  and  the  estate 
settled."     Here  the  executor  takes  all  tiie  personalty  absolutely 

94  56  N.  J.  Eq.  275. 

Kales  Put.  Int.-— 49  '  ^" 


§  671]  FI'TURE    INTERESTS  [Ch.    XXVT 

upon  trust  to  pay  drbts  and  legacies  and  then  to  distribute  the 
balance  to  the  residuary  legatees.  The  ease  is  not  really  diiTer- 
ent  from  those  referred  to  ontc,  §  669.  The  same  court — that  is, 
a  court  of  equity  or  a  probate  court  succeeding  to  the  equitable 
jurisdiction  of  a  court  of  chancery  in  the  administration  of 
estates — will  decide  the  question  of  construction  as  a  court  of 
chancery  would  decide  the  similar  question  when  a  trusteeship 
is  involved.  The  words  "when  debts  and  legacies  are  paid  and 
the  estate  settled"  refer  to  the  quantum  of  estate  and  the  duty 
of  the  executor  first  to  pay  the  debts  and  legacies,  and  not  at 
all  to  the  fiiiic  of  the  vesting  in  interest  of  the  residuary  bequest. 
5J  671.  Suppose  there  are  bequests  of  several  legacies  and 
then  a  devise  to  A  absolutely  of  the  residue  of  the  testator's 
real  and  personal  estate  ' '  when  debts  and  legacies  are  paid  and 
the  estate  settled":  As  to  the  personal  estate  the  situation  is 
precisely  the  same  as  that  in  the  case  put  ante,  §  670.  A  court 
of  equity  or  a  probate  court  succeeding  to  the  jurisdiction  of  a 
court  of  equity  in  the  administration  of  deceaseds'  estates,  would 
construe  the  gift  to  A  as  immediate,  subject  to  a  charge  for  the 
payment  of  debts  and  legacies.  But  neither  a  court  of  equity 
nor  a  probate  court  will  have  anything  to  do  with  the  construc- 
tion of  the  devise  of  the  real  estate.  There  is  no  trusteeship  as 
to  the  realty  and  the  executor  obtains  no  interest  in  it.  Never- 
theless, the  same  principle  upon  which  a  court  of  equity  found 
the  equitable  interest  in  A  in  the  cases  put  ante,  §§  669  and  670, 
to  be  equitable  interests  subject  merely  to  a  charge  for  the  pay- 
ment of  debts  is  equally  applicable  here.  The  real  estate  in  the 
case  put  is,  by  the  use  of  the  word  "residue,"  charged  in  equity 
with  the  payment  of  debts  and  legacies.  Hence  there  is  a  rational 
ground  for  holding  that  the  language  "when  debts  and  legacies 
are  paid  and  the  estate  settled"  refers  to  the  quantum  of  estate 
which  will  be  left  for  the  residuary  def isee  and  not  at  all  to  the 
time  of  vesting  in  interest  of  the  gift.  In  short,  there  can  still 
be  an  immediate  legal  fee  in  A  subject  to  the  equitable  charge 
to  pay  debts  and  legacies.  Is  there  any  reason  why  a  court  of 
law  or  a  court  dealing  with  a  legal  title,  in  passing  upon  a 
question  of  construction  relating  to  that  legal  title,  should  not 
take  notice  of  the  fact  that  in  equity  there  is  a  charge  upon  the 
legal  title  and  then  apply  the  rule  of  construction  that  is  avail- 

770 


CH.    XXVI]  RUI>E    AGAINST    PEHl'ETUITIES  |  i5  673 

able  in  a  rouv\  of  ('(|uity  wlicii  ;ill  the  interests  are  equitable? 
It  is  believed  llicrc  is  none.'"'' 

§  672.  Suppose  that  Blackacre  be  devised  to  A  in  fee  when 
the  testator's  debts  are  paid,  there  being  no  charge  of  the  debts 
upon  the  real  estate  by  words,  but  only  by  the  usual  statute 
making  real  estate  liable  for  the  payment  of  debts  after  the 
personal  estate  is  exhausted:  Here  again  the  question  as  to 
the  validity  oi"  A's  gift  will  arise  in  a  eourt  of  law  dealing  with  a 
legal  title.  There  is  no  trusteeshii).  The  exeeutor  takes  no  in- 
terest in  the  real  estate.  He  has  a  mere  !-ight  eonferred  l)y  stat- 
ute to  have  the  i-eal  estate  sold  under  a  decree  of  court  to  pay 
debts  in  ease  the  personal  estate  is  insolvent.  Nevertheless  there 
is  the  same  rational  basis  as  existed  in  all  the  preceding  ca.ses  for 
construing  the  words  ''when  debts  are  paid"  as  referring  to  the 
quantum  of  estate  conferred  and  the  fact  that  the  debts  are  in 
a  way  a  prior  lien  upon  the  premises,  rather  than  the  time  when 
the  devise  to  A  shall  vest  in  interest.  There  is,  it  is  believed,  no 
reason  why  the  rational  basis  for  this  construction  should  not  be 
as  available  in  a  court  of  law  with  respect  to  a  legal  title  as  in  a 
court  of  equity  with  respect  to  an  efpiitable  title.'"= 

§  673.  Suppose  a  devise  be  made  of  Blackacre  to  A  in  fee 
when  the  testator's  debts  and  legacies  are  paid  and  neither  the 
debts  nor  legacies  are  charged  upon  the  real  estate  by  the  tes- 
tator's words  or  by  any  statute:  Here  we  come  for  tiie  first 
time  to  the  case  wliere  the  words  "'when  debts  and  legacies  are 
paid"  cannot  by  any  possibility  refer  to  the  quanfum  of  estate. 
The  property  devised  is  wholly  free  from  all  claims  for  debts  and 
legacies.  Therefore,  the  reference  to  their  i)ayment  can  have 
nothing  to  do  with  the  amount  of  the  estate  devised.     Nor  can 

'•>5Sce    Heisen    r.    Ellis,    247    111.  the   trust    estate,   which   was    placed 

418;    McCutcheon    v.    The    Pullman  at    ten    years    from    the    testator's 

Trust   &    Sav.    Bank,    251    111.    .550.  death.     It  is  submitted  that  the  gift 

In  the  latter  ease   the  eourt  seems  to    the   trustees  was  to   take  effect 

not  to  have  rested  its  decision  ui)ou  no   matter  whether   the  time  named 

the  ground   that   "when   the  *exceu-  for  the  ultimate  distribution  had  e.x- 

tor    shall    be    discharged"    referred  ]iired   or   not,   and   that   the   court's 

merely  to  the  qiumtum  of  the  estate,  decision     might     better     have     been 

but  rather  to  have  held  that  the  gift  placed    squarely   upon   the    j.rinciplo 

to  the  trustees  upon  that  event  must  laid  down   in  the  text. 

take  effect  if  at  all  before  the  tinu^  «•■•  Lewis  on  Perpetuities,  637. 
tixcd    for    tho    final    distribution    of 

771 


§  674]  FUTURE    INTERESTS  [Ch.    XXVI 

the  words  importing  the  contingency  refer  to  the  duties  of  any- 
trust  ee  or  executor,  since  there  are  none.  The  phrase  "when 
debts  and  legacies  are  paid,"  if  it  is  to  be  given  any  meaning, 
must  be  given  its  literal  or  primary  meaning  as  referring  to  the 
time  when  A  is  to  take.  Hence,  the  gift  to  A  is  a  springing 
executory  devise.  It  does  not  vest  in  interest  until  it  vests  in 
possession  and  it  is,  therefore,  void  for  remoteness.  With  this 
result  the  authorities  seem  to  agree.^^  So,  if  the  devise  be  to  A 
absolutely  "when  the  will  is  probated,"  the  gift  to  A  must  be 
void  for  remoteness.^s  The  event  here  specified  is  such  that  the 
reasoning  indulged  in  ante,  §§  670-672,  where  the  event  is  the 
payment  of  debts  and  legacies,  is  wholly  inapplicable.  There  is 
no  rational  basis  for  saying  that  the  gift  is  immediate  to  A,  sub- 
ject to  a  charge  that  the  will  be  probated.  The  probate  of  the 
will  does  not  fix  the  quantum  of  the  estate.  The  words  refer  too 
explicitly  to  time  and  time  alone.  The  same  is  true  where  the 
gift  was  of  an  annuity  of  £100  to  the  Central  London  Rangers 
' '  on  the  appointment  of  the  next  lieutenant-colonel. ' '  ^^  Here 
the  appointment  of  the  next  lieutenant-colonel  had  nothing  to  do 
with  the  quantum  of  estate  or  the  performance  of  any  prior 
trusts.  Hence  there  was  nothing  to  do  but  to  hold  the  gift  void 
for  remoteness,  and  this  in  spite  of  the  fact  that  the  gift  was 
to  a  charity. 

§  674.  Suppose  a  devise  in  fee  to  trustees  upon  trust  to  pay 
debts  and  legacies  and  when  the  same  are  paid  to  divide  the 
estate  among  such  of  his  children  or  more  remote  issue  as 
may  "then"  be  living-:  We  have  already  observed  that  to  a 
considerable  extent  the  words  "when  debts  are  paid"  will  be 
held  to  refer  to  the  quantum  of  estate  and  not  to  the  time  of  vest- 

9T  Gray,  Eule  against  Perpetuities,  is  valid  but  the  provision  which  re- 

§415;    Lewis   on   Perpetuities,   623,  quires  against   the  will  of  a  cestui 

625.  absolutely  and  indefeasibly  entitled, 

98  Johnson  v.  Preston,  226  111.  447.  that  the  trust  continue,  is  unenforce- 

The  cases  where   the  devise  to  the  able.     This  is  not  the  application  of 

trustees  is  to  take  effect  immediately  the    Rule    Against   Perpetuities   but 

upon  the  testator 's  death,  but  it  is  a  rule  prohibiting  the  length  of  time 

provided  that  the  trust  shall  continue  that  a  trust  of  an  absolute  and  inde- 

till  a  given  number  of  years  after  feasible  equitable  interest  may  last, 

the  probate  of  the  will  (Armstrong  Ante,  §  658  et  seq. 

V.  Barber,  239  111.  389;    Mettler  v.  ^^  In  re  Lord  Stratheden    [1894], 

Warner,  243  111.  600),  must  be  dis-  3    Ch.   265. 
tinguished.    In  anoU  cases  the  devise 

772 


Ch.    XXVI J  RULE    AGAINST    PERPETUITIES  [§675 

ing  in  interest.  If  the  gift  is  to  an  ascertained  person  like  A,  the 
gift  to  A  is  construed  as  an  immediate  one,  subject  merely  to  the 
charge  for  the  payment  of  dehts.^  But  here  we  have  a  gift  to 
a  class  of  persons  who  are  described  as  "then  living."  "Then" 
refers  to  tlie  time  when  debts  and  legacies  are  paid  and  can 
refer  to  nothing  else.  "Then"  picks  out  the  element  of  time 
which  is  contained  in  the  phrase  "when  debts  and  legacies  are 
paid"  and  uses  it  explicitly  and  unequivocally.  "Then"  can- 
not have  any  sensible  meaning  as  referring  to  quantum  of  estate 
or  the  duties  of  the  trustees  or  the  priority  of  debts  and  legacies 
to  tlie  distribution  of  the  residue.  Hence  in  the  case  put  the  ulti- 
mate gift  is  void  for  remoteness.^  So,  if  after  a  direction  (not 
preceded  by  any  prior  gift)  that  the  trustee  shall  make  suitable 
provision  for  the  perpetual  care  of  the  testator's  cemetery  lot  in 
a  particular  cemetery,  the  charter  of  which  permits  it  to  receive 
deposits  upon  trust  for  perpetual  care  of  its  cemetery  lots,  there 
is  an  ultimate  gift  "Avhen  said  trust  shall  have  been  executed  and 
performed  to  those  persons  who  w'ould  then  answer  the  descrip- 
tion of  my  heirs  at  law  if  I  had  died  at  that  time, ' '  the  gift  over 
must  clearly  be  void  for  remoteness. 

§  675.  Suppose  that  the  devise  be  in  fee  to  trustees  upon 
trust  for  A  for  life  and  immediately  upon  A's  death  to  pay 
A's  debts  and  when  his  debts  are  paid  to  divide  among  the 
testator's  then  living-  issue:  -^  Here  the  word  "then"  does  not 
necessarily  and  unequivocally  refer  to  the  time  when  the  debts 
of  A  are  in  fact  paid.  It  may  refer  to  the  death  of  A,  the  issue 
living  at  A's  death  taking  subject  to  the  payment  of  A's  debts. 
This  would  be  clear  if  the  devise  read,  "to  pay  the  income  to  A 
for  life  and  immediately  upon  his  death  to  pay  all  his  debts  and 
divide  what  remains  among  the  then  living  issue"  of  the  testator. 
Here  only  one  time  is  expressed — the  death   of  A — although 

1  Ante,  §§  669-671.  position,   as   Professor   Gray   points 

2  In  re  Bewick,  Eyle  v.  Eyle,  80  out  (Rule  against  Perpetuities,  2d 
L.  J.  R.  Ch.  D.  47;  In  re  Wood  cd.,  §§  214b-214d),  is  untenable. 
[1894],  3  Ch.  310;  In  re  Roberts,  50  Brandenburg  v.  Thorndike,  139 
L.  J.  Ch.  265;  Lawrence  v.  Lawrence,  Mass.  102,  is  to  be  supported  upon 
4  W.  Australian  L.  R.  27.  Belfield  the  ground  indicated  in  Gray's  Rule 
r.  Booth,  63  Conn.  299,  is  contra  on  against  Perpetuities,  2d  and  3d  ed., 
the   ground  that  the   deceased's  es-  §§214a,  214c. 

tate  must  be  settled  in  a  reasonable  3  This  section  was  prepared  by  Mr. 

time  from  the  testator's  death.    This       Herbert  Pooe  of  the  Chicago  Bar. 

773 


§  6<6]  FUTURE    INTERESTS  [Ch.    XXVI 

something  is  directed  to  be  done  at  that  time  which  cannot  be 
performed  in  a  moment  of  time,  and  which  must  be  performed 
before  "what  remains"  can  be  ascertained  and  paid  over  to  the 
testator's  issue.  The  "then  living  issue,"  however,  would  prop- 
erly be  held  to  refer  to  those  living  at  the  death  of  A.  Even 
if,  in  such  a  case,  the  words  were  "when  the  debts  are  paid," 
to  divide  all  that  remains  among  the  "then"  living  issue  of  the 
testator,  the  Avord  "then"  might  still  refer  to  the  death  of  A, 
and  not  to  the  time  when  the  debts  might  in  fact  be  paid. 

Similarly,  if  the  direction  is  that  the  trustees  shall,  immedi- 
ately upon  the  death  of  A,  set  apart  a  fund  for  the  perpetual 
care  of  a  cemetry  lot  in  a  certain  cemetery,  and  divide  what 
remains — or  "when  it  is  done  divide  what  remains" — among  the 
then  living  issue  of  the  testator,  the  word  "then"  could  be  con- 
strued as  referring  to  the  death  of  A. 

Independently  of  the  argument  that  the  words,  "when  the 
debts  are  paid,"  etc.,  refer,  in  such  a  case,  not  to  the  time  when 
the  ultimate  gift  is  to  vest  in  interest,  but  to  the  quantum  of  the 
estate,  it  may  be  urged  generally  that  when  a  testator  directs 
something  to  be  done  at  a  definite  moment  of  time,  and  then  says 
that  when  that  thing  is  done  as  directed,  what  remains  shall  be 
paid  to  a  class  to  be  "then"  ascertained,  the  word  "then"  is  at 
least  used  ambiguously.  It  may  be  construed  to  refer  to  the 
moment  of  time  when  the  thing  in  question  is  direected  to  be 
done,  or  to  the  time  when  it  is  in  fact  done.  There  is  certainly 
no  greater  straining  of  the  language  used  to  give  it  the  first 
meaning,  particularly  if  the  Rule  against  Perpetuities  is  thereby 
avoided,  then  there  is  in  the  cases  put  ante,  §§  669-671. 

§  676.  Gifts  conditioned  upon  the  devisees  making  pay- 
ments to  others:  Such  a  condition  may  be  a  condition  prece- 
dent to  the  vesting  of  the  devise,*  and  may  occur  at  too  remote 
a  time.  In  IliJl  v.  GianeUi,^  however,  it  was  held  that  the  con- 
dition must  be  performed,  if  at  all,  in  the  lifetime  of  the  devisee 
and  therefore  the  gift  was  not  void  for  remoteness. 

TITLE   V. 
LIMITATIONS   TO  CLASSES. 
§  677.     Introductory :    If  a  devise  be  made  to  A  for  life  and 
then  to  sncli  of  his  children  as  reach  twenty-five  and  there  are 

4Neviu3  V.   Gourley,  95  111.   206;  -^'221  111.  286. 

97  111.  .365;  ante,  §222. 

774 


Ch,    XXVI]  RULE    AGAINST    PERPETUITIES  [§677 

110  t'hildrc'ii    in  esse,  tin-    Kiilc   is   violated   as  to  every   jjossihle 
member  of  the  class  and  the  gift  to  the  elass  fails.     Siip{)ose  one 
child  is  in  esse  at  the  testator's  death.     That  child  is  a  life  in 
being  and  must  attain  twenty-five,  if  at  all,  witliin   a  life  in 
being  at  the  testator's  death.     If  the  gift  to  that  child  could 
be  regarded  as  separable  from  the  gift  to  the  other  possible 
members  of  the  class  it  would  be  valid,  while  the  gift  to  other 
members  of  the  class  not  in  esse  would  fail.     "Where,  however, 
the  gift  is  to  a  class  as  such,  the  gifts  to  dift'erent   possible 
members  of  the  class  are  not  separable.     The  result  is  that  if 
the  gift  is  too  remote  as  to  any  member  of  the  class,  the  gift 
to  every  member  of  the  class  fails.     If  the  limitations  be  to  A 
for  life  and  then  to  such  children  as  reach  twenty-five  and  one 
has  already-  reached  twenty-five  at  the  commencement  of  the 
interests,  that  child  has  a  vested  interest  which  taken  by  itself 
is  not  void  for  remoteness;  but  the  vested  gift  is  inseparable 
from  the  possible  interests  of  other  members  of  the  elass,  which 
are  too  remote,  and  the  entire  gift,  must,  therefore,  fail.-'^*    The 
Rule  against  Perpetuities,  in  its  application  to  gifts  to  classes, 
may,  therefore,  be  stated  in  this  wa^-^:     The  gift  to  the  whole 
class  is  void  if  either  the  maximum  or  the  minimum  number 
of  the  class  may  possibly  be  ascertained  at  a  period  beyond  a 
life  or  lives   in  being  and  twenty-one  years."     Such    was   the 
rule  established  in  England  by  Leake  v.  Robinson.'     The  au- 
thority of  that  case  has  been  fully  recognized  by  our  Supreme 
Court  in  Howe  v.  Hodge.^     The  rule  as  above  formulated  has 
actually  been  applied  in  Lawrence  v.  Smith'^  and  hujraham  v. 
Ingraham  ^^^  to  hold  the  gift  to  the  class  wholly  void. 

The  correct  result  to  be  reached  upon  the  applieation  of  the 
above  rule  is  not  always  apparent.  It  is  believed  that  a  some- 
what utilitarian  method  of  exposition  can  be  adopted  by  work- 
ing out  the  following  series  of  problems — classifying  the  cases 
according  as  they  support  or  depart  from  the  results  stated. '^ 

5a  Gray,  Rule  against  Perpetuities,  '2  Mer.  363   (1817). 

2nd  and  3rd  ed.,  §  205a.  s  152  111.  252,  275;   ix)st.  §678. 

c  Observe  that  for  the  purpose  of  9  163  111.  149;   post,  §684. 

applying    the    above    rule    men    and  if  169     111.     432,     467-469;     post, 

women  are  regarded  as  capable  dur-  §  684.     Also  Schuknecht   v.  Schultz, 

ing  their  lives  of  having  children:  212  111.  43. 

Pitzel   r.   Schneider,  216  111.  87,  97.  u  The    writer    desires    to    say    at 

775 


§  678]  FUTURE    INTERESTS  [Ch.    XXVI 

§  678.  Problem  where  the  interest  to  the  class  is  vested  as 
distinguished  from  executory,  but  subject  to  a  postponed  en- 
joyment clause — Cases  (a)  and  (b) :  (a)  Suppose  property 
is  given  in  trust  to  the  testator's  grandchildren,  but  not  to  be 
paid  to  them  until  they  reach  the  age  of  twenty-five  years  re- 
spectively, (b)  Suppose  property  is  given  in  trust  to  A  for 
life  and  then  to  his  children,  but  not  to  be  paid  to  them  until 
they  reach  the  age  of  twenty-five  years  respectively.  In  both 
of  the  above  cases  it  is  assumed  that  the.  postponement  clause 
is  not  invalid  as  an  improper  restraint  on  alienation,  or  as  the 
attempted  creation  of  an  indestructible  absolute  equitable  in- 
terest— /.  e.,  it  is  assumed  that  the  doctrine  of  Claflin  v.  Claflin  ^^ 
prevails.^* 

Three  questions  arise  with  regard  to  the  gift  to  the  class  in 
both  of  the  above  cases.  First,  when  does  the  class  determine 
according  to  the  usual  rules  for  the  determination  of  classes? 
Second,  is  the  gift  to  the  class  unobjectionable  from  the  point 
of  view  of  remoteness?  Third,  is  the  postponement  clause  ob- 
jectionable on  the  ground  that  it  may  operate  for  too  long  a 
time?  All  of  these  questions  must  be  considered  with  reference 
to  case  (a)  on  each  of  two  hypotheses.  That  there  are  no 
grandchildren  in  esse  at  the  testator's  death,  and  that  there 
are;  and  with  reference  to  case  (b)  on  the  hypothesis  that  there 
are  no  children  of  A  living  at  the  testator's  death,  and  that 
there  are. 

(x)  If,  then,  in  case  (a)  there  are  no  grandchildren  in  esse  at 
the  testator's  death,  all  grandchildren  born  at  any  time  would 
be  included  in  the  gift  to  the  class  according  to  the  usual  rules 

this  point  that  the  following  clas-  v.  Claflin,  149  Mass.  19;  Young  v. 
sification  of  results  could  not  have  Snow,  167  Mass.  287;  Danahy  v. 
been  made  by  him  had  it  not  been  Noonan,  176  Mass.  467.  Illinois: 
for  the  very  generous  aid  rendered  post,  §  732.  Kentucky :  Smith  v. 
by  Professor  Gray  in  discussing  Isaacs,  78  S.  W.  434  (Ky.).  See 
with  him  by  letter  the  problems  also  Avery  v.  Avery,  90  Ky.  613, 
touched  upon,  and  in  submitting  semile.  Pennsylvania:  The  Doc- 
parts  of  the  MSS.  for  the  second  trine  of  Claflin  v.  Claflin  must  have 
edition  of  his  Rule  against  Perpetu-  been  conceded  when  In  re  Rhodes' 
ities.  Estate,  147  Pa.  St.  227,  was  decided, 

12  149  Mass.  19;  post,  §§732  et  for  see  Barker's  Estate,  159  Pa. 
seq.  St.     518;      Gray's     Restraints     on 

13  Such    an    assumption    seems    to  Alienation,  2nd  ed.  115. 
be  proper  in  Massachusetts:  Claflin 

776 


Ch.    XXVI]  RULE    AGAINST    PERPETUITIES  [§678 

for  the  determination  of  classes.  But  the  maximum  and  mini- 
mum of  the  chiss  must  bo  ascertained  at  the  death  of  the  child 
or  children  of  the  testator  who  are  lives  in  being  at  the  testa- 
tor's death,  so  that  the  entire  gift  to  the  class  is  not  objection- 
able on  any  ground  of  remoteness. 

The  postponement  clause  is  invalid  because  it  may  last  for 
too  long  a  time,  since  it  is  expressly  intended  to  be  operative 
for  longer  than  a  life  in  being  and  twenty-one  years.  This  pro- 
ceeds upon  the  assumption  that  under  the  doctrine  of  Claflin  v. 
Claflin  there  must  be  some  limits  to  the  length  of  time  that  an 
absolute  equitable  fee  may  be  made  indestructible,^^  and  that 
these  limits  may  fairly  be  assumed  to  be  the  period  of  a  life  in 
being  and  twenty-one  years.^^  If,  therefore,  the  postponed  en- 
joyment clause  is  expressed  to  be  operative  during  a  period 
which  may  last  longer  than  a  life  in  being  and  twenty-one 
years,  it  must  be  rejected  as  wholly  void.^^ 

In  case  (b),  on  the  .supposition  that  no  child  of  A  is  in  esse 
at  the  testator's  death,  the  maximum  and  minimum  of  the  cla.ss 
must  be  ascertained  at  the  death  of  the  life  tenant.  The  entire 
gift  is,  therefore,  unobjectionable  on  any  ground  of  remote- 
ness." The  postponement  clause  is  again  bad  because  it  may 
last  for  too  long  a  time.^^  The  class,  however,  may  increase 
till  the  death  of  the  life  tenant.^^ 

(y)  If  in  case  (a),  a  grandchild  is  hi  esse  at  the  testator's 
death,  then  the  minimum   of  the  class  is  ascertained  at  that 

i4Bigelow   V.   Cady,   171   111.   229,  le  In  Lunt  v.  Lunt,   108  111.   307, 

might    be    explained    npon    such    a  the  postponed   enjoyment   clause,  as 

jirinciple.      See   also   Bartlett,  Peti-  far  as  it   affected  the  share  of  the 

tioner,    163   Mass.    509,   512.  youngest   child,   would   last    for   too 

^^Post,    §737;    Kohtz   v.    Eldred,  long    a    time    unless   by    its    proper 

208  111.  60,  72;   Shallcross's  Estate,  construction    it    was   operative    only 

200    Pa.    St.    122    (1901),    semble;  until    the    devisee    actually    reached 

Winsor  v.  Mills,  157  Mass.  362,  sem-  thirty  or  died  under  that  age,  since 

hlc,  accord.     Sec  the  statutory  pro-  the  youngest  child  was  only  one  year 

vision   to    the    same    effect   in    Ken-  old    at    the    testator's    death.      This 

tucky:   Ky.  Stats.  (1903)  sec.  2360;  point,   however,   received   no   consid- 

Jobnson  's    Trustee    v.    Johnson,    79  eration  from  the  Court. 

S.     W.     293     (Ky.     1904).       Conn.  it  Chapman    v.    Cheney,    191    111. 

Trust  &  Safe  Dep.  Co.  v.  Hollister,  574. 

74    Conn.    228,    is    not    necessarily  >8  This  is  not  contradicted  by  any- 

contra,    because    it    was    recognized  thing  in  Chapman  r,  Cheney,  supra. 

that  no  indestructible  equitable  fee  i9  Chapman  v.  Cheney,  supra. 
could  be  created. 

777 


§  678]  FUTURE    INTERESTS  [Ch.    XXVI 

time  and  the  maximum  of  the  class  must  be  ascertained  at  the 
death  of  the  testator's  child  or  children  who  are  lives  in  being. 
There  is  no  question,  therefore,  about  the  validity  of  the  gift 
to  the  class  so  far  as  the  question  of  remoteness  is  concerned.-*' 

Whether  the  class  determines  when  the  eldest  grandchild 
born  actually  reaches  or  would  have  reached  the  required  age 
had  he  lived,  or  when  the  eldest  grandchild  born  reaches  the 
required  age  or  dies,  has  been  dealt  with,  ante  §  568. 

Is  the  postponement  clause  invalid  on  the  ground  that  it 
may  last  too  long?  If  it  is  to  operate  till  each  grandchild 
reaches  twenty-five  or  dies  under  that  age,  then  it  is  valid  so 
far  as  it  affects  the  share  of  each  grandchild  in  esse  at  the 
testator's  death. -^  If  it  is  to  last  until  each  member  of  the 
class  reaches  twenty-five,  or  would  have  reached  twenty-five  in 
ease  he  liad  lived,--  then  it  is  void  as  to  every  share  except 
those  of  grandchildren  who  have  attained  the  age  of  at  least 
four  years  at  the  testator's  death.-^ 

If  in  case  (b)  a  child  of  A  is  in  esse  at  the  testator's  death, 
the  gift  to  the  class  must  be  valid  because  the  minimum  is  al- 
ready ascertained  and  the  maximum  must  be  ascertained  at  the 
death  of  A.-^  By  the  ordinary  rule  for  the  determination  of 
classes,  the  class  will  increase  until  the  death  of  the  life  ten- 
ant, A.-'^  If  the  postponement  is  to  last  until  each  child  of  A 
reaches  twenty-five  or  dies  under  that  age,  then  the  postpone- 
ment is  valid  as  to  the  share  of  every  member  of  the  class  in 
esse  at  the  testator's  death,  and  bad  as  to  all  others.     If  the 

20  Howe  i;.  Hodge,  152  111.  252.  In    re   Ferneley's    Trusts    [1902]    1 

21  There  was  no  decision  upon  Ch.  543 ;  Herbert  v.  Webster,  15 
this  point  in  Howe  v.  Hodge,  152  Ch.  Div.  610  (1880).  In  re  Kid- 
Ill.  252.  For  authority  that  the  ley,  11  Ch.  Div.  645  (1879),  and 
postponed  enjoyment  clause  stands  In  re  Michaels'  Trusts,  46  L.  J. 
valid  as  to  every  share  upon  which  Ch.  651  (1877)  contra  not  followed, 
it    will    surely   not    last   more    than  22  Ante,  §  568. 

a    life    in    being    and    twenty-one  23  There  was  no  decision  upon  this 

years,    see   the   English    cases   hold-  point   in   Howe   v.   Hodge,   152   111. 

ing   a    clause    against    anticipation,  252. 

imposed  by   a  general   provision   of  24  Planner     v.    Fellows,     206    111. 

a  will  upon  all  the  shares  of  daugh-  136;   Johnson's  Trustee  v.  Johnson, 

ters  of  the  testator's  children,  valid  79   S.   W.    293    (Ky.    1904);    In   re 

as  to   those   members    of    the    class  Rhodes'    Estate,    147    Pa.    St.    227 

in  esse  at  the  testator's  death  and  (1892). 

void  as   to   those  born  afterwards :  23  Id, 

119> 


ClI.    XXVJJ  KULE    AGAINST    I'ERI'KTriTIES  I  §  GTU 

postponement   is  to  last    rmtii   a  rliild   of  A   reaches,   or  would  ■ 
have  roaehed,  twenty-five,  it  is  void  except  as  to  the  children  0/ 
A  in  esse  at  the  testator's  death,  who  had  at  that  time,  at  least, 
reached  the  age  of  four  years,  and  void  as  to  all  others.-" 

§679.  Cases  (c)  and  (d) :  (c)  Suppose  property  is  given 
to  trustees  in  trust  for  the  grandchildren  of  A,  but  no  grand- 
child shall  be  entitled  to  have  his  share  paid  to  him  until  he 
reaches  twenty-five,  (d)  Suppose  proi)erty  is  given  to  trus- 
tees in  trust  to  pay  the  income  to  A  for  life  and  on  his  death 
to  turn  over  the  principal  to  A's  grandchildren,  but  no  grand- 
child shall  be  entitled  to  have  his  share  paid  to  him  until  he 
reaches  twenty-five.  Again  assume  in  the  above  two  cases  that 
the  doctrine  of  Claflm  v.  Claflin^''  prevails,  so  that  the  post- 
ponement clause  is  not  objectionable  as  an  improper  restraint 
on  alienation,  or  as  the  attempted  creation  of  an  indestructilile 
equitable  fee. 

Three  questions  again  arise  with  regard  to  the  gift  to  the 
class  in  both  the  above  cases.  First,  when  does  the  class  de- 
termine according  to  the  usual  rules  for  the  determination  of 
classes?  Second,  is  the  gift  to  the  class  unobjectionable  from 
the  point  of  view  of  remoteness?  Third,  is  the  postponement 
clause  objectionable  on  the  ground  that  it  may  operate  for  too 
long  a  time?  All  of  these  questions  must  be  answered  upon 
two  hypotheses  with  regard  to  the  above  two  cases, — that  A 
has  no  grandchildren  in  esse  at  the  testator's  death,  and  that 
he  has  but  that  such  grandchild  is  over  four  years  of  age  at 
the  time  of  the  testator's  death. 

(x)  In  cases  (c)  and  (d),  on  the  supposition  that  no  grand- 
child of  A  is  in  esse  at  the  testator's  death,  the  gift  to  the  whole 
class  is  clearly  too  remote  because  it  remains  executory  till  a 
grandchild  of  A  is  born,  and  that  may  not  be  until  after  the 
death  of  A  and  twenty-one  years.  Nor  can  the  gift  to  the  class 
be  aided  by  getting  rid  of  the  postponement  clause. 

(y)  Suppose  now  that  in  case  (c)  a  grandchild  of  A  be  in 
esse  at  the  testator's  death  and  at  least  four  years  old.     The 

2«  There  is  no  decision  or  diciifin  S.  W.  R.  293  (Ky.  1904)  seems  un- 

on  this  point  in  Planner  v.  Fellows,  certain.      The   court   in   Ee  Rhodes' 

206  111.   1.36.     A\niat   the  opinion   of  Estate,  147  Pa.  St.  227  (1S92),  par- 

the  court  may  have  been  upon  it  in  ticularly  refused  to  decide  the  point. 
Johnson 's    Trustee    v.    Johnson,    79  27  Post.  §  732  et  seq. 

779 


§  679]  FUTURE    INTERESTS  [Ch.    XXVI 

luiuimuui  of  the  class  is  ascertained  at  once.  Tlie  maximum 
will  be  ascertained,  according  to  the  usual  rules  for  the  deter- 
mination of  classes,  when  the  first  period  of  distribution  arrives. 
If  that  is  when  the  eldest  reaches  twenty-five  or  dies,  or  when 
the  eldest  reaches  twenty-five  or  would  have  done  so  had  he 
lived,-^  the  gift  to  the  class  is  valid  so  far  as  the  question  of 
remoteness  is  concerned. 

As  to  the  postponement  clause,  that  can  only  be  valid  as  to 
the  shares  of  the  grandchildren  of  A  in  esse  at  the  testator's 
death  who  have  reached  four  years  at  least  at  the  time  of  the 
testator's  death.  As  to  those  not  m  esse  at  the  time  of  the 
testator's  death  it  is  clearly  bad.  As  to  those  in  esse,  but  under 
four  years,  it  is  valid  if  the  period  of  postponement  lasts  only 
until  they  reach  twenty-five  or  die.  It  is  bad  if  it  is  to  last 
till  they  actually  reach  twenty-five  or  would  have  done  so  if 
they  had  lived. 

In  case  (d),  on  the  supposition  that  a  grandchild  of  A  is  in 
esse  at  the  testator's  death  and  at  least  four  years  of  age,  the 
minimum  of  the  class  is  ascertained,  and  if  the  maximum  is 
ascertained  at  A's  death,  or  when  the  eldest  grandchild  of  A 
living  at  the  testator's  death  reaches  twenty-five  or  dies  under 
that  age,  whichever  happens  last,  the  gift  to  the  class  is  valid 
and  the  postponement  clause  is  good  as  to  all  the  grandchildren 
of  A  who  are  in  esse  at  the  testator's  death,  and  void  as  to  all 
others.  If  the  first  period  of  distribution  comes  at  the  death 
of  A  or  when  the  eldest  grandchild  of  A  reaches  twenty-five 
or  would  have  done  so  had  he  lived,  which  ever  happens  last, 
then  the  gift  to  the  class  is  valid,  but  the  postponed  enjoyment 
clause  is  only  valid  as  to  grandchildren  in  esse  at  the  testator's 
death  who  have  reached  the  age  of  four  years  at  least. 

The  gift  in  Kevern  v.  Williams,"^  to  the  grandchildren  of  tlie 
testator's  living  brother,  to  be  paid  when  they  reach  twenty- 
five,  must,  therefore,  have  been  valid  as  far  as  any  (juestion 
of  remoteness  was  concerned,  for  the  eldest  grandchild  in  esse 
at  the  testator's  death  was  ten  years  old.  If  the  postponement 
clauses  were  valid  at  all,  the  class  should  have  increased  till 
the  eldest  did  actually  attain  twenty-five,  (which  happened). 
The  fact  that  the  class  was  only  allowed  to  increase  till  the 
death  of  the  life  tenant  must  be  attributed  to  the  rule  of  the 

28  Ante,  §568.  295  Sim.  17L 

780 


Ch.    XXVI]  RULE    AGAINST    PERPETUITIES  [§680 

English  cases  that  the  postponomoiit  chiuse  must  be  rejected 
because  it  was  an  improper  restraint  on  alienation  and,  there- 
fore, the  first  period  of  distribution  came,  in  fact,  at  the  death 
of  the  life  tenant.  If  this  is  wrong  because  the  postponeincnt 
clause  should  not  be  rejected  when,  to  retain  it,  would  allow 
the  class  to  increase,^"  then  we  have  a  misapplication  of  the 
rule  which  rejects  the  postponed  enjoyment  clause.  Hut  that 
misapplication  has  nothing  to  do  with  effect  of  the  opera- 
tion of  the  Rule  against  Perpetuities.''^ 

§  680.  Ca^es  (e)  and  (f) :  Suppose  that  we  alter  the  above 
cases  (c)  and  (d)  so  that  applying  the  usual  rule  for  the  deter- 
mination of  classes,  the  maximum  of  the  class  may  be  ascer- 
tained at  too  remote  a  time.  Thus  suppose  we  put  two  further 
cases,  (e)  and  (f),  like  (c)  and  (d)  except  that  the  grand- 
children of  A  in  esse  at  the  death  of  the  testator  are  only/ 
three  years  old.  If  the  rule  for  the  determination  of  the  class 
be  that  the  class  closes  when  the  eldest  grandchild  of  A  born, 
actually  reaches  twenty-five  or  dies  under  that  age,  then  the 
gift  to  the  class  is  valid,  and  the  postponed  enjoyment  clause 
is  valid  on  different  shares  according  to  the  principle  applied, 
ante  §  679.  Suppose,  however,  again  assuming  the  doctrine 
of  Claflin  v.  Claflin  ■'-  to  be  law,  that  the  first  period  of  distri- 
bution arrives  when  the  eldest  grandchild  born  actually  reaches 
twenty-five  or  icould  have  reached  tiventy-five  if  he  had  lived.'^'^ 
Under  these  circumstances  the  maximum  number  of  the  class 
may,  if  the  class  increases  until  the  first  period  of  distribution, 
be  ascertained  at  too  remote  a  time. 

Is  there,  then,  on  this  latter  supposition,  any  way  of  saving 
the  validity  of  the  gift  to  the  class?  If  such  a  way  exists  it 
must  be  because  the  class  will  determine  at  some  earlier  period 
— that  is,  in  case  (e)  at  the  testator's  death,  and  in  case  (f)  at 
the  death  of  the  life  tenant.  There  are  two  grounds  upon  which 
this  earlier  determination  of  the  class  may  be  supported. 

First:  Since  the  postponed  enjoyment  clause  is  expressed  to 
be  operative  during  a  period  which  may  last  longer  tluui  a  life  in 
being  and  twenty-one  years,^*  it  must  be  rejected  as  wholly 

soOppenheim  v.   Henry,  10   Ilarc  32  Post,  §§732  et  seq. 

441.  3s  Ante,  §  568. 

31  Gray's   Bulo    against   Perpetui-  ^*Post,  §737. 
ties,  2nd  and   :5rd  ed.,   §  639aa. 

781 


^681J  FfTURE    INTERESTS  [Cn.    XXVI 

void  ill  cases  (e)  and  (f).  Thorefore,  the  whole  postponed  en- 
joyment clause  must  be  rejected  and  the  class  determined  at 
the  death  of  the  testator  in  case  (e)  and  at  the  death  of  the 
life  tenant  in  case  (f ).■'"' 

Second:  The  same  result  can  he  reached  where  the  doctrine 
of  Chill i)i  r.  Clafliu  is  not  law,  but  where  the  postponement  is 
valid  because  the  gift  is  to  a  class  and  so  for  the  benefit  of 
others  than  the  devisee  whose  share  is  postponed.'^"  The  post- 
ponement is  valid  in  such  a  case  only  out  of  favor  to  the  other 
membei's  of  the  class.  It  is  a  relaxation  of  the  general  rule  that 
such  postponements  upon  an  absolute  equitable  interest  are  void. 
Hence,  when,  to  apply  such  a  relaxation  of  the  general  rule 
will  make  the  gift  to  the  whole  class  void  for  remoteness,  it 
will  not  be  applied.  The  usual  rule  that  the  whole  postpone- 
ment is  void,  therefore,  prevails,  and  the  gift  to  the  restricted 
class  is  valid. 

§  681.  Problem  where  the  interest  to  the  class  is  contingent 
upon  their  attaining  twenty-five — Cases  (a)  and  (b) :  (a) 
Suppose  property  is  given  in  trust  for  such  of  the  testator's 
grandchildren  as  reach  the  age  of  twenty-five,  (b)  Suppose 
property  is  given  to  A  for  life  and  then  to  such  of  his  children 
as  reach  the  age  of  twenty-five. 

(x)  If  no  grandchild  of  the  testator  and  no  child  of  A  is 
in  esse  at  the  testator's'  death  the  gift  is  hopelessly  bad  for 
remoteness. 

(y)  Suppose  a  grandchild  of  the  testator  in  case  (a),  or  a 
child  of  A  in  case  (b),  is  in  esse  at  the  testator's  death,  but  has 
not  reached  the  age  of  twenty-five.  In  both  cases  the  maximum 
of  the  class  is,  under  the  usual  rules  for  the  determination  of 
classes,  ascertained  in  time,  because  the  class  can  increase  only 
until  the  death  of  the  testator's  children  or  until  the  death  of 
A.  In  both  cases,  however,  the  minimum  of  the  class  may  po.s- 
sibly  not  be  ascertained  till  too  remote  a  time  because  of  the  con- 
tingency that  only  those  who  reach  twenty-five  can  take.     In 

35  This    view    appears    somewhat  36  Oppenheim   v.   Henry,   10   Hare 

more   fully  stated   in    an   article   by  441;   Gray's  Rule  against  Perpetui- 

the   author   entitled   "Vested   Gifts  ties,  2nd  and  '.ird  ed.,  §639;   ante, 

to    a    Class    and    the    Rule    against  §  568 ;  post,  §  732. 
Perpetuities,"    19   Harv.   Law   Rev. 
598. 

782 


Cii.  XXVI 


KUI-E    AUAINJiT     PKKI'KTI   ITIKS 


S  68." 


botli  cases,  tlun-et'oro,  tlie  {j^ift  lo  the  whole  class  is  void  I'or  re- 
moteness.-'^ 

(/)  Suppose  a  <j;:raii(lcliilcl  of  llie  testator,  or  a  child  of  A, 
has  readied  twenty-five  at  the  testator's  death.  In  ease  (aj  the 
class  would  have  closed  and  the  grandchild  or  grandchildren 
in  esse  at  the  testator's  death  would  take  all.  In  case  (b)  the 
child  of  A  who  reached  twenty-five  has  a  vested  interest  in  some 
share,  but  the  maximum  of  the  class  is  not  determined  until  A's 
death,  and  the  minimum  perhaps  not  until  twenty-four  years 
after  his  death  and  aftei-  the  death  of  the  child  who  has  reached 
twenty-five.     Hence  the  gift  to  the  whole  class  fails. -^^ 

TITLE   VT. 
SEPARABLE    LIMlTATIOx\S. 

§  685.  Conting-encies  separated  by  act  of  the  testator  or 
settlor:  A  gift  to  grandchildren  when  the  youngest  born  in 
the  testator's  life  time  reaches  twenty-five  is  valid.  A  gift  to 
grandchildren   when   the   youngest    born   at   any   time   reaches 


y^  As  to  case  (a)  :  Ingrahani  v. 
Ingraham,  169  111.  432,  467-469, 
(gift  to  uephews  and  nieces).  Is 
not  the  dictuvi  of  Howe  v.  Hodge, 
152  111.  252,  in  accord  with  the 
text?  There  it  was  conceded  that, 
omitting  the  last  sentence  of  the 
residuary  clause,  the  gift  would 
have  been  to  grandchildren  contin- 
gent upon  their  reaching  thirty. 
The  preceding  life  estate  was  cre- 
ated only  in  part  of  the  residuary 
estate.  The  limitation  to  the  grand- 
children should,  therefore,  be 
treated,  for  the  purpose  of  apply- 
ing the  rule  for  the  determination 
of  classes,  as  if  there  were  no  pre- 
ceding interest.  Ante,  §.'366.  The 
intimation  of  the  court  is  very 
strong,  that,  assuming  the  gift  to 
the  grandchildren  to  be  contingent 
upon  their  attaining  thirty,  the  gift 
to  the  whole  class  would  be  too  re- 
mote. This  conclusion  must  rest 
upon  the  ground  that  the  class  would 


not  actually  close  till  the  first  grand- 
child living  at  any  time  reached 
thirty,  that  is,  there  is  no  principle 
upon  which  you  can  save  the  gift  to 
the  class  by  not  applying  the  usual 
rule  for  the  determination  of  the 
class 

As  to  case  (b)  :  Lawrence  v. 
Smith,  163  111.  149.  See  also  ap- 
proval of  Leake  r.  Robinson,  2  Mer. 
363,  in  Howe  v.  Hodge,  152  111. 
252,  275  et  seq.  See  also  Schnk 
necht  V.  Schultz,  212  111,  43. 

•■'8  Pitzel  V.  Schneider,  216  111.  S7. 

Note:  §§682-684,  both  inclusive, 
in  the  original  MSS.  were  the  same 
as  §§  266-268  of  the  former  work  on 
Future  Interests.  The  writer  de- 
cided to  leave  these  sections  out  of 
the  present  work  after  the  sections 
had  been  numbered  and  the  cross 
references  inserted.  That  is  the  rea- 
son for  the  gap  in  the  section  num- 
bers at  this  point. 


783 


§  685]  FUTURE    INTERESTS  [Ch.    XXVI 

twenty-five  is  void  for  remoteness.  If,  in  making  a  gift  to  grand- 
children, the  testator  distinctly  separates  the  two  classes  the  gift 
to  one  will  be  valid  and  the  gift  to  the  other  will  be  void.  If, 
however,  as  in  Lawrence  v.  Smith;-^^  by  the  eighteenth  clause  of 
the  will  there  involved,  he  merely  devises  to  his  grandchildren 
when  the  youngest  ^orn  at  any  time  reaches  twenty-five,  there 
is  no  separation  of  the  classes  to  take  and  the  whole  gift  must 
be  void. 

By  clauses  twelve,  thirteen  and  fourteen  of  the  will  involved 
in  Lawrence  v.  Smith,  the  testator  directed  his  trustees  'Ho  pay 
over  and  deliver  to  each  of  the  said  children  of  my  said  daugh- 
ter when  he  or  she  shall  arrive  at  the  age  of  twenty-five  years, 
the  sum  of  $10,000."  At  the  time  of  the  testator's  death  there 
were  living  five  grandchildren  coming  within  the  gifts  of  the 
above  clauses.  The  youngest  w^as  then  nine  years  old.  It  is 
clear  that  since  each  member  of  the  class  got  a  specific  sum 
the  gifts  to  the  grandchildren  were  separable  and  those  to  the 
grandchildren  living  at  the  testator's  death  were  not  too  re- 
mote.4"  This  position  the  court  seems  to  have  admitted  the 
soundness  of.  It,  however,  held  the  gifts  void  on  another 
ground.^* 

In  Quinlan  v.  Wickman'^'-  the  separable  limitations  were  in 
case  "my  said  daughter  Elizabeth  Wickman  should  die  without 
leaving  any  children,  or  in  case  the  surviving  child  of  my  said 
daughter  Elizabeth  Wickman,  or  all  of  such  children,  if  more 
than  one,  die  before  arriving  at  the  age  of  thirty  years."  The 
gift  over  on  the  death  of  Elizabeth  without  leaving  any  chil- 
dren was  valid.  The  gift  over  on  the  other  contingency  was 
void  for  remoteness.  The  contingencies,  however,  w^ere  sepa- 
rated by  the  express  language  of  the  testatrix  and.  the  one  which 
was  valid  could,  therefore,  take  effect.^-' 

39  163  111.  149.  "would  be  to  make  a  different  will 
40 Gray's  Eule  against  Perpetui-  from  the  one  made  by  the  testa- 
ties,  §§355,  389  et  seq.  tor."  The  idea  was  also  advanced 
*i  Viz. :  that  the  testator  did  not  that  since  the  trust  might  last  too 
intend  to  make  any  difference  be-  long  the  whole  trust  was  void.  See 
tween  grandchildren  living  at  his  ante,  §§  658  et  seq. 
death  and  those  born  afterward,  and  •*'-'  233  111.  39. 
that  to  hold  the  gift  bad  as  to  the  43  Moroney  v.  Haas,  277  111.  167. 
latter   and   good   as  to   the    former 

784 


Ch.    XXVI]  RULE    AGAINST    PERPETUITIES  I  §  687 

§  686.  Separation  of  contingencies  by  operation  of  law — 
The  rule  of  Doe  d.  Evers  v.  Challis:  »'  In  this  case  tlie  limita- 
tions were  oi"  legal  estates  substantially  to  A  for  life,  remainder 
to  his  children  (then  unborn),  with  a  gift  over  if  he  left  chil- 
dren who  died  under  twenty-three,  to  B  in  fee.  As  long  as  A 
had  no  children  B's  interest  stood  ready  to  take  effect  as  a  re- 
mainder. It  was  a  contingent  remainder.  It  was  limited  on  an 
event  (the  failure  of  A  to  have  any  children)  which  might  not 
occur  till  after  the  termination  of  the  preceding  life  estate.  If 
the  life  estate  had  terminated  prematurely  by  forfeiture  or 
merger  before  A's  death  without  having  had  children,  B's  re- 
mainder would  have  been  subject  to  the  rule  of  destructibility 
of  contingent  remainders.  But  B's  interest  was  liable  to  be 
turned  from  a  contingent  remainder  to  a  shifting  executory  de- 
vise. This  would  happen  if  a  child  were  bom  to  A.  Such  a 
child  would  take  a  vested  remainder  in  fee  at  once  on  birth  and 
B's  interest,  therefore,  must  have  become  at  once  a  shifting  in- 
terest, which  was  void  for  remoteness.  The  holding  in  Doe  v. 
Challis  was  that  because  in  one  event  B's  interest  took  effect  as 
a  remainder  and  in  the  other  as  a  shifting  executory  devise,  the 
difference  in  the  nature  of  such  interests  caused  a  separation  of 
the  contingencies  by  operation  of  law  and  hence  the  gift  to  B, 
in  the  event  that  A  died  without  ever  having  had  any  children, 
was  valid. 

It  follows  that  where  equitable  interests  or  personal  property 
are  involved,  or  where  the  rule  of  destructibility  of  contingent 
remainders  is  wholly  abolished,  the  distinction  between  the 
future  interest  taking  effect  as  a  remainder  and  as  a  shifting 
executory  devise,  fails,  and  there  can  be  no  separation  of  the 
contingencies  by  operation  of  law.-^^ 

TITLE  VII. 

APPLICATION   OF   THE   RULE   OF  DESTRUCTIBILITY   OF 

CONTINGENT  REMAINDERS  TO  PREVENT  THE 

VIOLATION  OF  THE  RULE  AGAINST 

PERPETUITIES. 

5$  687.  Introductory:  A  legal  contingent  remainder  which 
is  subject  to  the  Rule  against  Perpetuities  may  fail  to  violate 

4*18    Q.   B.    224,    231    (1850);    7  *^>  In  re  Bonce  [1891],  ?i  Ch.  242; 

H.  L.  Cas.  5,31    (1859).  In  re  Hancock,  [1901]  1  Cli.  (C.  A.) 

Kales  Fut.  Int. — 50  735 


§  688]  FUTURE    INTERESTS  [Ch.    XXVI 

the  rule  solely  because,  by  the  rule  of  destruetibility,  the  con- 
tingent event  \ipon  which  it  is  to  take  effect,  must  happen  be- 
fore or  at  the  time  of  the  termination  of  the  preceding  life 
estate  or  the  remainder  will  be  destroyed.  Thus,  where  the  lim- 
itations are  to  A  for  life,  remainder  to  the  eldest  (unborn)  son 
of  A,  if  he  attain  twenty-five,  the  remainder,  if  it  took  effect 
according  to  the  expressed  intent,  w^ould  be  void  for  remoteness. 
But  the  moment  the  rule  of  destruetibility  becomes  applicable 
so  that  A  must  attain  twenty-five  before  the  termination  of  the 
life  estate  in  order  to  take  at  all,  the  rule  is  not  violated. 

§  688.  Suppose  the  legal  contingent  remainder  is  limited  to 
a  class:  Suppose  the  remainder  is  to  such  children  of  A  (the 
life  tenant)  as  attain  twenty-five.  Here  under  the  English 
authorities  prior  to  the  recent  Contingent  Remainders  Acts,  the 
remainder  will  fail  as  to  every  member  of  the  class  who  has  not 
attained  twenty-five  before  the  termination  of  the  life  estate.^® 
Hence  the  remainder  cannot  be  void  for  remoteness.  The  mo- 
ment, however,  the  remainder  was  made  indestructible  so  that 
members  of  the  class  attaining  twenty-five  after  the  termination 
of  the  life  estate  could  share,  the  entire  remainder  to  the  class 
violated  the  Rule  against  Perpetuities.  If,  pursuant  to  8i- 
monds  v.  Simonds  *''  the  remainder  to  the  class  becomes  inde- 
structible if  one  member  reaches  twenty -five  before  the  life  estate 
terminates,  then  in  that  event,  which  may  possibly  happen,  the 
gift  to  the  class  would  be  void  for  remoteness. 

Suppose  the  legal  estates  are  to  A  for  life,  then  to  such  chil- 
dren of  A  as  "  either  before  or  after "  A 's  death  attain  twenty- 
five.  This  is  not  a  gift  to  two  separate  classes  which  may  be 
valid  as  to  one  and  void  as  to  the  other.  It  is  a  gift  to  a  single 
class  regardless  of  when  they  reach  twenty-one.  Under  In  re 
Lechmere  and  Lloyd  ^"^  it  is  not  destructible  as  to  children  who 
have  not  reached  twenty-five  before  the  life  tenant's  death 
where  some  have  attained  twenty-five  before  that  time.  In  Dean 
V.  Dean  '^^  it  was  held  to  be  not  destructible  as  to  children  who 
had  not  attained  twenty-five  before  the  life  tenant's  death,  even 

482;     [1902]    A.    C.    14,    overruling  ^7 199  Mass.  552   (1908). 

Watson  V.   Young,   28  Ch.  Div.   4:56  48  18   Ch.  Div.  524    (1881);   antr, 

(1885),   where   the    rule   of    Doe   v.  §102. 

Challis  was  misapplied.  «  l.  R.  .3  Ch.  150   (1891);  ante, 

«  Ante,  §§  99,  101.  §  99. 

786 


Cn.    XXVJ]  KL'LE    AGAINST    I'KU1'ETUIT1P:S  [§690 

where  no  children  had  attained  twenty-five  before  the  life  ten- 
ant's death.  It  follows,  therefore,  that  the  gift  to  the  entire 
class  in  the  principal  case  put  is  void  for  remoteness. 

§  689.  Suppose  the  future  interest  is  one  which  may  take 
effect  as  a  remainder  or  as  a  shifting-  interest:  •'"  Thus  suppose 
the  limitations  ai-c  to  A  fur  life,  rcmaintlcr  to  A's  children  (now 
unborn),  but  if  A  leaves  no  children  who  shall  attain  twenty- 
five,  then  to  B  in  fee.  Here  H's  interest  stands  ready  to  take 
effect  as  a  remainder  if  no  children  are  born  to  A.  But  the 
moment  a  child  is  born  to  A,  that  child  takes  a  vested  remainder, 
and  the  gift  over  to  B,  if  it  takes  effect,  must  do  so  as  a  shifting 
interest.  If  B's  interest  is  subject  to  a  rule  of  destructibility  in 
case  it  has  to  take  effect  as  a  shifting  interest,  then  it  cannot 
be  void  for  remoteness.  If,  however,  it  is  not  subject  to  any 
such  rule  of  destructibility  the  gift  over  in  the  event  of  A's 
having  a  child  which  dies  under  twenty-five  is  void  for  remote- 
ness. But  the  gift  over  on  this  event  is  separable  from  the  event 
of  A's  dying  without  having  had  any  child,  and  the  gift  over  in 
this  latter  event  is  not  too  remote.  The  separation  of  the  con- 
tingencies is  said  to  occur  by  operation  of  law  because  in  one 
event  the  future  interest  is  a  contingent  remainder  and  as  such 
destructible,  and  in  the  other,  a  shifting  executory  interest.^* 

TITLE  VIII. 
POWERS. 

§  690.  Powers  void  in  their  creation  because  they  may  be 
exercised  at  too  remote  a  time:  A  power  is  not  void  in  its 
inception  because,  by  its  exercise,  limitations  may  be  made  which 
would  be  void  for  remoteness.-"' 2  It  is  only  when  the  power  itself 
may  possibly  be  exercised  at  a  time  beyond  the  limits  of  the 
rule  that  it  is  void  in  its  creation."'"^ 

To  this,  however,  there  is  an  exception:  If  within  lives  in  be- 
ing and  twenty-one  years  from  the  time  of  the  creation  of  the 
power  there  must  come  into  the  hands  of  the  donee  a  right  to 
exercise  a  general  power  to  appoint  by  deed  or  will,  the  power 
is  valid  in  its  creation,  although  the  donee  may  not  exercise  it 

io  Ante,  §105.  '"3  Gray's    Rule   against    Pcrpetui- 

51  Ante,  §  686.  ties,  §  47:i. 

52  Hopkinson    v.    Swaini,    284    111. 
11,   24. 

787 


§  691]  FUTURE    INTERESTS  [Ch.    XXVI 

■within  the  time  required  by  the  rule.  Thus,  if  in  a  marriage 
settlement  there  be  given  to  the  unborn  child  of  the  marriage 
a  general  power  to  appoint  by  deed  or  will,  it  is  clear  that  within 
lives  in  being  at  the  date  of  the  settlement  and  twenty-one  years 
thereafter  the  power  will  come  into  the  hands  of  one  who  may 
exercise  it.  But  the  actual  exercise  of  the  power  may  not  occur 
until  the  end  of  lives  not  in  being  at  the  time  of  the  settlement. 
The  power,  however,  is  valid  in  its  creation,  for  within  the 
proper  time  the  donee  has  become  completely  dominus  of  the 
property,  because  he  can  appoint  to  himself.  Such  is  the  hold- 
ing of  Bray  v.  Bree.^^  If,  however,  the  marriage  settlement 
conferred  a  general  power  on  the  unborn  daughter  of  the  mar- 
riage to  appoint  by  deed  or  will,  but  required  that  such  appoint- 
ment should  take  effect  only  after  the  marriage  of  the  daughter, 
there  would  be  a  condition  precedent  to  the  exercise  of  the  power 
that  the  daughter  must  marry.  She,  therefore,  would  not  be- 
come dominus  of  the  property  until  that  event  had  occurred, 
and  the  power,  therefore,  is  void  in  its  inception.  That  is  Louisa's 
ease  in  Morgan  v.  Gronow.^^  In  the  same  way,  if  the  marriage 
settlement  confers  a  general  power  upon  the  unborn  children 
of  the  marriage  to  appoint  by  will  only,  the  power  cannot  be 
exercised  till  the  child  dies.  Then  only  can  the  donee  possibly 
become  dominus  of  the  property.  That  time  is  too  remote. 
Hence  the  power  is  void  in  its  inception.  This  is  precisely  the 
holding  of  WoUaston  v.  King  ^^  and  Tredennick  v.  Tredemiick.^'^ 
§  691.  Invalidity  for  remoteness  in  the  exercise  of  a  valid 
power — Where  the  power  is  special:  Suppose  that  the  power 
as  created  must  be  exercised,  if  at  all,  within  lives  in  being  and 
twenty-one  j'ears  from  the  date  of  the  creation  of  the  power,  so 
that  the  power  is  valid  in  its  inception.  Thus,  suppose  A  by 
his  own  ante-nuptial  settlement  or  by  the  will  of  X  has  a  power 
to  appoint  among  his  issue  and  appoints  by  will  to  his  daughter 

54  2  CI.  &  F.  453 ;  8  Bligh,  N.  S.,  that  case   would  have  been   consid- 
568    (1834).  ered  not  too  remote  on  the  ground 

55  L.  E.  16  Eq.  1  (1873).  that  the  general  power  of  appoint- 

56  L.  E.  8  Eq.  165   (1869).  ment   (whether  exercisable  hj  deed 

57  [1900]    1    I.    E.    354.      On    the  or  will,  or  will  only)  is  in  substance 
other  hand,  in  3  Dav.  Pr'ec.  Conv.,  part  of  the  interest  (a  life  estate) 
3rd   ed.   156,   note,   it   is   said   that  limited    to    the   object    of    the   said 
until  Wollaston  v.  King,  sripra,  an  power  (the  life  tenant), 
appointment    such   as   was   made   in 

788 


CH.    XXVI]  RULE    AGAINST    PERPETUITIES  [§  691 

for  lii'e  and  then  to  such  children  of  his  daughter  as  reach 
twenty-one.  Here  A's  power  is  valid  in  its  inception  because 
it  must  be  exercised  within  lives  in  being  at  its  creation,  i.  e., 
within  A's  life.  The  remoteness,  however,  of  an  appointment 
made  pursuant  to  such  a  power  depends,  according  to  Gray,  on 
"its  distance  from  the  creation  and  not  from  the  exercise  of  the 
power."  ^^  Hence  the  ultimate  interest  appointed  to  the  grand- 
children of  A  who  reach  twenty-one  is  void. 

In  determining  the  distance  from  the  creation  of  the  special 
power  of  the  interests  appointed,  a  fictitious  or  hypothetical 
process  is  indulged  in  of  reading  the  interests  appointed  into  the 
instrument  creating  the  power.  This  gives  rise  to  difficulties 
which  may  best  be  indicated  by  considering  the  following  cases : 

Suppose  X  devises  to  A  for  life  with  a  special  power  in  A  to 
appoint  to  his  issue.  If  A  is  married  at  X's  death  and  has  chil- 
dren living  at  X's  death,  A  can  appoint  a  given  sum  to  each  of 
the  children  by  name  and  the  appointment  to  such  as  were 
living  at  X's  death  is  valid  though  contingent  upon  their  reach- 
ing twenty-five,  or  any  other  age,  because  they  are  lives  in  being 
at  X's  death.  In  reading  the  appointment  back  into  X's  will 
we  would  have  a  gift  to  persons  then  living.^^ 

Suppose,  however,  that  A  is  a  bachelor  at  X's  death.  A  ap- 
points two  thousand  dollars  to  each  of  his  daughters  when  they 
reach  twenty-four.  One  daughter  is  over  three  years  old  at  A's 
death  and  one  is  under  that  age.  If  the  bare  words  of  the  ap- 
pointment be  read  into  the  will  of  X  the  gift  to  the  daughter 
over  three  years  old  must  fail  because  as  so  read,  it  might  be  to 
a  child  who  would  not  be  three  years  old  at  A's  death.  But  if 
the  appointment  be  read  back  into  X's  will  with  the  essential 
characteristics  which  each  daughter  has  at  the  time  of  A's 
death — as  for  instance,  that  one  is  named  M  and  is  less  than 
three  years  old,  and  another  named  N  and  more  than  three  years 
old, — then  the  appointment  to  N  is  not  void  for  remoteness  and 
since  it  is  expressly  separable  from  the  other,  it  is  valid.  Such 
is  the  result  reached  in  Wilkinson  v.  Diincan.*^'^  Mr.  Gray  sup- 
ports this  case.^i     The  process  of  reading  the  appointment  back 

58  Gray's  Rule   against   Perpetui-  0030  Beav.   Ill    (1861). 

ties,  §  473.  ei  Rule   against   Perpetuities,    2nd 

59  See   Hopkinson   v.    Swaim,   28-i      ed.  and  3rd  ed.,  §  523c. 
111.  11. 

789 


I  692]  FUTURE    INTERESTS  [Cli.    XXVI 

into  the  instrument  oi-eatinj;  the  power  is  artificial.  Why  not 
make  it  a  sensible  artificial  process  which  will  support  gifts  as 
far  as  possible  ?  - 

Suppose  that  A  also  appoints  a  sum  to  all  of  his  sons  when 
they  reach  twenty-four  and  some  sons  are  over  three  years  of 
age  at  A's  death  and  others  are  under  that  age.  If,  in  regard 
to  the  gift  to  the  daughters,  the  gift  be  read  back  with  the  ages 
at  A's  death  of  each  daughter,  then  the  same  step  should  be 
taken  with  regard  to  the  gift  to  the  sons.  But  having  done  so, 
the  results  are  quite  different.  The  gift  to  some  of  the  sons 
will  still  be  void  and,  as  the  gift  is  to  all  as  a  class  and,  there- 
fore, inseparable,  the  whole  gift  must  fail.*'^  This  result  also  was 
reached  in  Wilkinson  v.  Duncan.  If,  however,  at  A's  death  all 
the  sons  were  over  three  years  of  age,  then  if  you  read  the  ap- 
pointment into  the  will  of  X  with  the  characteristics  of  every 
member  of  the  class  as  to  age,  the  gift  to  the  entire  class  must  be 
valid. 

§  692.  Where  the  power  is  general  to  appoint  by  deed  or 
will:  Here  it  is  held  that  the  validity  of  the  exercise  of  the 
power  depends  not  on  the  distance  of  the  interest  appointed 
from  the  creation  of  the  power,  but  on  the  distance  of  such  in- 
terest from  the  time  of  the  exercise  of  the  power.^"  Why  ?  Be- 
cause it  is  said  that,  at  the  time  of  appointment,  the  donee  is 
dominus  of  the  property.  "He  has  the  absolute  control  over  it. 
He  can  deal  with  the  property  as  if  he  owned  it  in  fee.  *  *  * 
The  appointment  can  be  considered  an  appointment  to  the  donee 
himself  and  then  a  settlement  of  his  own  property."  ^-^  In  short, 
the  courts  look  at  the  substance  of  the  situation  and  not  the  form. 
If  the  donee  is  at  the  time  of  appointment  in  all  respects  in  a 
position  like  that  of  the  absolute  owner,  then  the  validity  of  his 
act,  .so  far  as  the  question  of  remoteness  is  concerned,  is  to  be 
determined  Avith  reference  to  the  tii^ie  of  the  appointment. 

§  693.  Where  the  power  is  to  appoint  by  will  only,  but  is  as 
general  as  such  a  power  can  possibly  be — Problem  stated: 
Suppose  X  devises  to  A  for  life,  with  a  power,  as  general  as 
such  a  power  can  be,  to  appoint  by  will.  Can  A  by  will  ap- 
point to  trustees  for  his  daughter  for  life  and  then  upon  trust 

«2  Ante,  §  677.  «« Id. 

«"  Gray's    Rule    against   Perpetui- 
ties, 2ncl  and  3rd  ed.,  §  .'524. 

790 


Ch.    XXVI]  RULE    AGAINST    PERPETUITIES  f  §  694 

for  such  children  of  the  daughter  as  reach  twenty-one?  Is 
the  appointment  to  the  grandchildren  valid? 

Observe  that  tiiere  is  no  (iiicstion  whatever  of  the  validity  of 
the  power  in  its  creation.  The  power  is  valid  to  start  with,  for  it 
must  be  exercised  in  lives  in  being  at  the  date  of  its  creation.  The 
only  question  is  whether  in  determining  the  validity  of  the.  ex- 
ercise of  the  power  the  remoteness  of  the  limitations  created  is 
to  depend  upon  the  time  when  the  power  was  created  or  when 
it  was  exercised.  If  the  formei-  view  be  adopted  the  appoint- 
ment to  A's  grandchildren  is  too  remote.  If  the  latter  is  correct 
then  the  gift  to  the  grandcliildi'cii  is  valid. 

§  694.  The  cases  are  in  conflict:  In  In  re  Powell's  Trusts,*^'' 
Vice  Chancellor  James  held  the  exercise  of  the  power  void  for 
remoteness.  In  Rous  v.  Jackson,^''  In  re  Flower  ^>~  and  Stuart 
V.  Bahington,^^  the  power  was  held  to  have  been  well  exercised 
and  these  eases  must  be  regarded  as  establishing  the  law  in  Eng- 
land contrary  to  In  re  Powell's  Trusts. 

Mr.  Gray  supported  In  re  Powell's  Trusts  and  the  American 
cases  have  followed  his  opinion.  In  Genet  i\  Hunt  •"^  a  marriage 
settlement  provided  for  the  Avife  for  life  with  a  power  in  her 
to  appoint  by  will  to  any  one,  and  in  default  of  appointment 
to  her  heirs.  She  appointed  to  her  children  for  life  and  then  to 
their  heirs.  If  the  limitations  appointed  were  measured  from 
the  date  of  the  settlement  the  New  York  statute  was  violated, 
because  the  absolute  power  of  alienation  was  suspended  for  three 
lives,  including  the  lives  of  the  children  of  the  marriage,  who 
were  not  in  esse  at  the  time  their  interests  were  created.  The 
court  in  adopting  the  view  of  Powell's  Trusts  paid  tribute  to 
the  powerful  influence  which  Mr.  Gray's  views  hfive  had.  It 
seems  to  have  followed  In  re  PowclVs  Trusts  only  because  Mr. 
Gray  said  it  ought  to.  In  the  Pennsylvania  case  of  Lawrence's 
Estate  '^*  the  limitations  created  in  the  exercise  of  the  power 
were  valid  even  though  the  view  of  PowelVs  Trusts  was  adopted. 
The  court,  however,  also  paid  tribute  to  the  influence  of  Mr. 
Gray's  views  by  announcing  their  preference  for  the  rule  of 

«5  39  L.  J.  Ch.  N.  S.  188   (18(59).  Perpetuities,"   26    Harv.    Law   Kev. 

nfl29  Ch.  Div.  521    (188o).  64. 

«7  55  L.  J.  Ch.  N.  S.  200   (188.J).  '•"  li:^  N.  Y.  158. 

«8  27  L.  R.   (Ireland)   551;  "Gen-  ""  l.lfi  Pa.  .".54. 
eral    Powers    and    the    Rule    against 

791 


§  694]  FUTURE    INTERESTS  [Ch.    XXVI 

In  re  Powell's  Trusts.  In  the  recent  case  of  Minot  v.  Paine  "^^ 
the  ruling  of  In  re  Powell's  Trusts  prevailed. 

IVIr.  Gray  originallj^  put  his  principal  reliance  for  the  sup- 
port of  In  re  Powell's  Trusts  upon  the  English  cases  of  Wollas- 
ton  V.  King,''-  Morgan  v.  Gronow  '^^  and  Tredennick  v.  Treden- 
?j/cA\"'*  The  American  cases  which  rely  upon  Mr.  Gray's  view 
must  be  regarded  as  relying  to  the  extent  that  Mr.  Gray  did  on 
the  same  cases;  but  these,  as  has  already  been  indicated,'^^  only 
hold  that  a  power  in  an  unborn  person  to  appoint  by  will  was 
void  in  its  inception  because  it  might  be  exercised  at  too  re- 
mote a  time. 

In  Wollaston  v.  King  and  Tredennick  v.  Tredennick  the  gen- 
eral power  was  given  by  a  marriage  settlement  to  the  unborn 
child  of  the  marriage,  to  be  exercised  by  will  only.  The  fact 
that  it  was  a  general  power,  or  that  the  donee  became  dominus 
of  the  property  or  practically  the  owner  at  the  time  of  his 
death,  was  immaterial,  for  that  did  not  happen  soon  enough. 
The  time  was  So  late  that  the  power  was  void  in  its  inception. 
In  Morgan  v.  Gronow  the  situation  was  the  same  except  that 
the  general  power  was  given  by  a  marriage  settlement  to  an 
unborn  daughter  to  be  exercised  by  deed  or  will  upon  her  mar- 
riage. Here  the  donee  when  she  married  could  exercise  the 
power  by  deed  or  will,  yet  the  power  was  void  for  remoteness 
in  its  inception  because  the  marriage  of  the  daughter  might 
happen  at  too  remote  a  time.  The  principle  applicable  is  the 
same  as  that  acted  upon  in  Wollaston  v.  King. 

To  declare,  as  Mr.  Gray  does,^^*  that  Wollaston  v.  King,  Tred- 
ennick V.  Tredennick,  and  Morgan  v.  Gronow  "stand  together 
with  Powell's  Trusts  in  holding  that  appointments  under  a  gen- 
eral power  exercisable  by  will  only  must  be  referred  to  the  time 
of  the  creation  of  the  power"  is  to  confound  two  entirely  differ- 
ent situations — one  where  the  question  is  as  to  the  original  valid- 
ity of  the  power  at  the  time  of  its  creation ;  the  other  where  the 
power  is  valid  when  created  but  where  the  question  is,  has  it 
been  validly  exercised.  In  the  first  case  the  fact  that  the  power 
conferred  upon  an  unborn  person  is  a  general  power  to  appoint 

71  230  Mass.  514.  74  [1900]  1  Ir.  R.  354. 

72L.  R.  8  Eq.   165    (1869).  75  Ante,  §690. 

73  L.  R.  16  Eq.  1  (1873)   (Louisa's  75a  Rule  against  Perpetuities,  2nd 

Case).  and  3rd  ed.,  §  526a. 

792 


CH.    XXVI]  RULE    AGAINST    PERPETUITIES  [§  695 

by  deed  or  will  causes  it  to  be  validly  created  because  the  donee 
will  have  a  complete  right  to  exercise  it  at  the  commencement 
of  his  life,  or  at  least  when  he  is  twenty-one,  and  at  that  time — 
which  is  not  too  remote — he  will  become  practically  the  owner. 
On  the  other  hand,  if  he  were  given  the  power  to  appoint  by 
will  only,  he  could  not  possibly  exercise  the  power  till  he  died. 
He  could  not  possibly  become  "practically  the  owner"  till  then. 
Hence  the  power  is  void  in  its  inception.  In  the  second  case, 
the  fact  that  a  general  power  to  appoint  by  deed  or  will  is  con- 
ferred which  is  valid,  causes  the  validity  of  the  limitations 
created  in  the  exercise  of  the  valid  power  to  depend  on  their 
remoteness  from  the  date  of  the  execution  of  the  power.  This 
is  because  the  donee  is  practically  the  owner  at  the  date  of  the 
exercise  of  the  power.  In  short,  the  fact  that  a  power  is  a  gen- 
eral power  to  appoint  by  deed  or  will,  or  a  general  power  to  ap- 
point by  will  only,  has  an  entirely  different  significance,  de- 
pending upon  whether  one  is  considering  the  validity  of  the 
power  in  its  inception  or  the  validity  of  the  exercise  of  a  power 
admittedly  valid  in  its  inception. 

§  695.  Solution  of  the  problem  on  principle :  It  is  con- 
ceded that  the  solution  of  the  problem  depends  upon  whether, 
at  the  time  of  the  appointment,  the  donee  of  the  power  is  in 
substance,  or  practically,  the  owner.  If  he  is,  the  exercise  of 
the  power  is  valid.    If  he  is  not,  it  is  void. 

Mr.  Gray  '^^  insists  that  the  donee  is  not  ' '  practically  the 
owner;  he  cannot  appoint  to  himself;  he  is,  indeed,  the  only 
person  to  whom  he  cannot  possibly  appoint,  for  he  must  die  be- 
fore the  transfer  of  the  property  can  take  place."  When  Mr. 
Gray  says  the  donee  cannot  appoint  to  himself  so  as  to  enjoy 
the  property  during  his  life,  we  must  agree  with  him.  It  fol- 
lows inevitably  that  during  the  life  of  the  donee  he  is  not  prac- 
tically*the  owner.  If  this  is  what  Mr.  Gray  means  when  he  says 
that  the  donee  is  not  "practically  the  owner,"  all  must  agree. 
But  is  that  the  important  inquiry?  Is  it  not  essential  to  de- 
termine whether  at  the  moment  of  exercising  the  general  power 
the  donee  is  practically  the  ow-ner?  For  instance,  if  a  donee 
were  given  a  general  power  to  appoint  by  deed  or  will  when 
he  reached  thirty  or  married,  it  would  not  be  illuminating  to  say 

76  Gray's  Kule   against   Perpetui- 
ties, 2nd  and  3rd  ed.,  §  526b. 

793 


§  695]  FUTURE    INTERESTS  [Ch.    XXVI 

that  he  Avas  not  practically  the  owner  before  he  reached  thirty 
or  married,  and,  therefore,  could  not  be  practically  the  owner 
when  he  reached  that  age  or  married.  In  the  same  w^ay  it  will 
not  do  to  say  that  because  a  donee  is  not  practically  the  owner 
before  his  death,  he  cannot  be  practically  the  owner  at  the 
moment  of  his  death.  In  short,  our  real  inquiry  must  be,  is  the 
donee  with  a  general  power  to  appoint  by  will  only,  practically 
the  owner  at  the  moment  of  his  death  ? 

How  is  one  to  determine  whether  at  a  particular  time  the 
donee  of  a  general  power  is  practically  the  owner?  The  natural 
test  would  seem  to  be :  can  he  do  everything  with  reference  to 
the  property  which  is  subject  to  the  power  that  he  could  do  if  he 
were  the  owner?  Thus,  if  the  donee  have  a  general  power  to 
appoint  by  deed  or  will  at  thirty,  we  say  he  can  do  everything 
at  thirty  wdth  reference  to  the  property  subject  to  the  power  that 
he  could  do  if  he  were  the  owner.  In  the  same  way,  when  the 
donee  has  a  general  power  to  appoint  by  will  only,  we  determine 
whether  he  is  practically  the  owner  at  the  moment  of  death  by 
asking  whether  he  can  do  everything  with  reference  to  the 
property  subject  to  the  power  that  he  could  do  if  he  were  the 
owner.  We  do  not  need  to  ask  whether  he  can  enjoy  the  prop- 
erty personally,  because  we  know  that  no  owner  of  property  can 
at  the  moment  of  death  enjoy  it  personally.  His  entire  right  of 
ownership  consists  in  the  power  to  dispose  of  it. 

What,  then,  is  there  that  an  owner  of  property  can  do  in  the 
way  of  disposing  of  his  property  at  the  moment  of  his  death 
which  the  donee  of  a  general  power  to  appoint  by  will  cannot 
accomplish?  Nothing!  Ergo,  the  donee  of  a  general  power  to 
appoint  by  will,  if  that  power  be  valid  in  its  inception,  is,  at  the 
moment  when  lie  may  exercise  the  power,  practically  the  owner.''^'^ 
Rons  V.  Jackson,''^  In  re  Floiver,'^^  and  Stuart  v.  Babington,^^ 

'•'  It  does  not  really  add  anything  pointed  to  his  estate  first  and  then 

to  the  weight  of  the  argument  thot  devised    his    own    property,    or    has 

one  having  a  general  power  to  ap-  appointed   direct   to  the   objects  of 

point  by  will,  while  he  cannot  ap-  appointment:  Chamberlain  v.  Huteh- 

point  to  himself,  can  appoint  to  his  inson,  22   Beav.  444    (1856)  ;   In  re 

estate,    and    the    question    whether  Davies'    Trusts,   L.   E.    1.3    Eq.    163 

there  is  a  lapsed  devise  or  bequest  (1871). 

under  the  donee's  will  or  the  prop-  ts  29  Ch.  D.  .'321    (188.5). 

erty   subject    to   the   power   goes    in  7955  L.  J.  Ch.  N.  S.  200  (1885). 

default     of     appointment,     depends  80  27  L.  R.  Ir.  551   (1891). 
upon    whether    the    donee    has    ap- 

794 


CH.    XXVI]  RULE    AGAINST    PERPETUITIES  [S  6*J5 

whi(.'li  proceed  upon  tliis  pi-emise  and  hold  the  power  in  A  to 
appoint  hy  will  to  have  boon  well  exercised  when  A  appoints  to 
his  daughter  for  life  and  then  to  such  of  her  children  as  reach 
twenty-one,  are  correct  on   principle.     The  direct  repudiation 
in  each  case  of  the  contrary   result  reached  in  In  re  Powell's 
Trusts^^  should  be  approved.     Mr.  Gray's  attempt  to  sustain 
Powell's  Trusts  on  principle  cannot  be  regarded  as  successful. 
To  take  Mr.  Gray's  view  would  be  to  make  a  further  distinc- 
tion in  regard  to  the  exereise  of  i)owers  which  would  add  an 
additional  pitfall  for  testators  and  produce  results  which  are 
incongruous.     For  instance,  suppose  A  has  a  general  power  to 
appoint  by  will  and  to  appoint  by  deed  also  after  marriage. 
Suppose  A  appoints  by  will  and  dies  the  day  before  marriage. 
Under  ^Ir.  Gray's  view  the  appointment  would  violate  the  rule, 
although  if  A  kad  died  the  day  after  marriage  the  same  will 
would  have  been  valid.     Is  it  not  incongruous  for  the  same  act 
to  be  dependent  for  its  validity  upon  such  a  fortuitous  combina- 
tion of  circumstances?    Again,  suppose  A  has  a  general  power  to 
appoint  by  will  and  to  appoint  by  deed  also  during  the  twenty- 
four  hours  preceding  his  death.     This,  according  to  Mr.  Gray's 
view,  would  make  A  dominus  so  that  his  appointment  by  will 
would  be  valid.     It  is  incongruous  that  this  should  be  so  when, 
if  the  practically  useless  power  to  appoint  by  deed  had  not  been 
given,  the  appointment  would  be  void.     Still  further,  suppose 
A  has  a  general  power  to  appoint  one  fund  by  deed  or  will 
and  a  general  power  to  appoint  another  by  will  only.     A's  ap- 
pointment by  will  of  both  funds  would  be  void  as  to  one  and 
valid  as  to  the  other.     This  is  incongruous  and  furthermore,  it 
adds  another  trap  for  testators.     Draftsmen  are  noAv  familiar 
with  the  danger  of  devising  the  testator's  own  property  and 
property  over  which  he  has  a  power  of  appointment  in  the  same 
words  because  the  gift  of  the  testator's  own  property  may  be 
valid  and  the  same  gifts  by  way  of  appointment  may  be  void. 
This  situation  is  unfortunate  enough,  but  to  add  to  it  the  neces- 
sity of  testators  drawing  a  distinction  between  appointments  un- 
der a  power  to  appoint  by  deed  or  will  and  a  power  to  appoint  by 
will  alone  is  to  pile  distinction  on  distinction  and  add  trap  to 
trap. 

The  argument  against  Mr.  Gray's  view  may  also  be  stated  in 

81  39  L.  J.  Ch.  188   (1869). 

795 


§  695]  FUTURE    INTERESTS  [Ch.    XXVI 

this  way :  If  A  owns  property  and  devises  it,  the  remoteness  of 
the  interests  limited  are  determined  by  reference  to  his  death. 
Whether  he  has  owned  the  property  during  his  entire  life  or 
acquired  it  only  the  moment  before  his  death,  the  rule  is  the 
same.  The  fact  that  he  acquired  the  property  the  moment  be- , 
fore  his  death  and  therefore  had,  practically  speaking,  no  power 
to  enjoy  or  alienate  it  in  his  lifetime  is  immaterial.  A,  with  a 
general  power  to  appoint  by  deed  or  will,  is  in  the  same  position 
as  the  owmer  in  fee  who  enjoyed  such  ownership  during  his  life. 
A,  with  a  general  pow-er  to  appoint  by  will  only,  is  in  the  same 
position  as  the  person  who  acquires  property  the  moment  be- 
fore he  dies.  If  the  remoteness  of  the  interests  appointed  are 
to  be  determined  as  of  the  date  of  appointment  in  the  former 
case  because  it  is  the  same  as  if  A  had  the  fee  during  his  life- 
time, why  should  not  the  remoteness  of  the  interests  appointed 
be  determined  as  of  the  date  of  the  appointment  in  the  latter 
case  because  it  is  the  same  as  if  A  had  acquired  the  property 
the  moment  before  he  died?  In  short,  if  no  difference  is  made 
between  the  case  where  A  owns  property  during  his  lifetime  and 
the  case  where  he  acquires  it  only  the  moment  before  death, 
why  should  any  difference  be  made  between  the  ease  where  A 
has  a  general  power  of  appointment  by  deed  in  his  lifetime  and 
the  case  where  he  has  a  general  power  to  appoint  by  will  only 
at  his  death? 

Mr.  Gray  (in  correspondence  with  the  author)  mentioned  the 
following  as  an  unfortunate  result  of  supporting  Rous  v.  Jack- 
son: Suppose,  he  said,  A  having  a  general  power  to  appoint  by 
w^ill  appoints  to  B  for  life  and  then  as  B  may  appoint  by  will 
and  this  keeps  up  throughout  the  alphabet.  All  agree  that  such 
a  series  of  limitations  would  be  offensive,  but  the  case  put  can 
be  dealt  with  by  itself,  and  A's  appointment  to  B  for  life  and 
then  as  B  appoints  may  be  held  void  on  grounds  entirely  apart 
from  the  application  of  the  Rule  against  Perpetuities.  A's  ap- 
pointment is  void  because  it  is  the  creation  of  a  substantial  re- 
straint on  alienation  of  the  fee  simple  by  the  splitting  up  of  the 
interests,  so  that  reckoned  from  the  death  of  A's  testator  X 
the  alienation  of  the  fee  has  been  seriously  impaired  for  longer 
than  lives  in  being  and  twenty-one  years.'' ^  The  second  power  to 
appoint  can,  of  course,  be  link;ed  up  with  the  first  gift  for  life 

82  Ante,  §§  658  «*  f^-a. 

796 


Ch.    XXVI]  RULE    AGAINST    PERPETUITIES  [§697 

and  power  to  appoint  because  of  the  general  princvie  that  ap- 
pointments are  limitations  of  interests  by  the  donor  of  the  power. 
Ilenee,  the  second  life  estate  and  power  which  are  the  result  of 
the  first  appointment  are  clearly  created  by  the  donor  of  the 
first  power  and  as  such  represent  a  device  of  the  first  donor  of 
the  power  for  putting  a  practical  restraint  on  alienation  by  deed 
during  two  successive  lives  and  possibly  longer  than  lives  in 
being  and  twenty-one  years.    Nor  is  there  anything  inconsistent 
in  this  method  of  condemning  the  exercise  of  the  power  and  the 
creation  of  the  second  life  estate  and  power  of  appointment  with 
the  reckoning  of  the  time,  in  the  application  of  the  Rule  against 
Perpetuities,  from  the  death  of  the  first  donee.    This  latter  step 
is  in  accordance  with  the  exception  founded  upon  the  fact  that 
the  donee  is  dominus  at  the  time  he  exercises  the  general  testa- 
mentary power.    The  Rule  against  Perpetuities  is  one  thing  and 
the  rule  which  forbids  the  particular  device  which  makes  the 
fee  practically  inalienable  for  too  long  a  time  by  splitting  the 
estates  is  another,    In  the  application  of  the  Rule  against  Per- 
petuities the  first  donee  may  well  be  the  dominus,  but  in  the 
application  of  the  rule  -which  forbids  a  practical  restraint  on 
alienation  by  splitting  the  ownership  for  too  long  a  time  the 
question  of  whether  the  first  donee  is  dominus  or  not  is  imma- 
terial. 

TITLE   IX. 
LIMITATIONS  AFTER  AN  ESTATE  TAIL. 

§  696.  Validity  of  such  limitations  has  already  been  dealt 
with:  It  seemed  convenient  in  dealing  with  limitations  after 
an  estate  tail  ^^  to  consider  the  question  of  their  remoteness 
along  with  other  questions.  Logically  the  remoteness  of  the 
interest  should  be  dealt  with  at  this  point. 

TITLE   X. 
CHARITIES.8* 

§  697.  Trusts  for  charitable  purposes  not  void  for  remote- 
ness though  the  trust  must  last  indefinitely:     In  several  lUi- 

93^;ite,  §§  410,  411.  Iiigraham     v.     Ingraham,  -169     111. 

s*What    is   a  cluirifahlc   bequest:       4.S2;    Crcrar    i'-    Williams,    145    111. 


97 


§  698]  FUTURE    INTERESTS  [Ch.    XXVI 

nois  cases,*"'  it  is  suggested  that  a  trust  for  charity  is  not  void 
for  remoteness  though  it  is  to  last  indefinitely,  and  that  this  is 
so,  because  of  a  particular  exception  in  favor  of  charitable  be- 
quests. It  should  be  observed  that  the  Rule  against  Perpe- 
tuities has  nothing  whatever  to  do  with  the  validity  or  invalid- 
ity of  a  gift  on  the  ground  merely  that  it  may  last  indefinitely, 
provided  it  must  become  a  vested  interest  within  the  proper 
time.^*' 

§  698.  Where  a  charitable  bequest  is  to  a  corporation  or 
association  not  yet  formed:  Suppose  the  -gift  to  a  corporation 
or  association  be  for  a  charitable  object  and  not  preceded  by 
any  gift  to  an  individual,  and  suppose,  also,  the  corporation  or 
association  is  not  in  existence.  It  might  be  argued  that  the  gift 
was  subject  to  a  condition  precedent  that  the  corporation  or 
association  must  come  into  existence,  and  that,  as  that  event 
might  happen  at  an  indefinite  time  in  the  future,  the  whole  gift 
was  void  for  remoteness.  Courts,  however,  are  quick  to  see  an 
immediate  gift  for  charity  ^'^  which  makes  the  gift  valid,  and 
to  hold  pursuant  to  the  power  of  Courts  o'f  Equity  over  charities, 
that  the  corporation  or  association  will  be  permitted  to  take  if  it 
be  formed  within  a  reasonable  time  and  if  not  that  thje  gift  to 
charity  will  be  carried  out  cy  pres.^^ 

625,  643;  44  111.  App.  497;  Andrews  Trust  for  charity  "or  other  pur- 

V.  Andrews,  110  111.  223;   Heuser  v.  poses"  void  for  uncertainty:   Tay- 

Harris,   42   111.   425;    Hunt   v.  Fow-  lor  v.  Keep,  2  111.  App.   368. 

ler,  121  111.  269;    Trafton  v.  Black,  sr,  Heuser  v.   Harris,  42   111.   425; 

187   111.   36;    Garrison   v.   Little,   75  Andrews  v.  Andrews,  110   111.   223; 

111.    App.    402;    Morgan    v.    Grand  Abend  v.  Endowment  Fund,  74   111. 

Prairie  Seminary,  70  111.  App.  575;  App.  654;  Garrison  v.  Little,  75  111. 

Taylor   v.    Keep,    2    111.    App.    368;  App.  402. 

Oilman    v.    Hamilton,    16    111.    225;  '      »<^^  Ante,     §656.       Note    "that     in 

Trustees  v.   Petefish,   181   111.   255;  Kirkland   v.   Cox,   94.111.   400,   416, 

Abend  v.  Endo^Tiient  Fund,   74  111.  where    there    was    a    gift    over    to 

App.  654.  charity,  if  the  first  taker  died  with- 

Charitable      beqiiests      valid      al-  out  issue  the  court  declined  to  pass 

thouffih     the     cestui     is     indefinite:  upon    whether    the    gift    over    was 

Heuser  v.   Harris,  42  111.  425;   An-  void  for  remoteness, 

drews    v.    Andrews,    110    111.    223;  87  Ingraham     v.     Ingraham,     169 

Mills    v.    Newberry,    112     111.     123  111.   432,   452    (quoting  Gray's  Rule 

(condition    precedent    that    a    selec-  against  Perpetuities,  §  607). 

tion   be   made)  ;    Trafton  'v.    Black,  ««  This  must  be  the  ground  upon 

187  111.  36;   Morgan  v.  Grand  Prai-  which     Morgan     v.     Grand     Prairie 

rie   Seminary,   70   111.   Ajjp.  575.  Seminary,    70    111.    App.    575,   is   to 

798 


Ch.    XXVI  I  RULE    AGAINST    PERPETUITIES  f§699 

Crcrar  r.  Williums,^'-*  is  a  ease  whore  tlie  diaiitable  gift  was  a 
present  one  to  a  non-existing  corjioration  or  assoeiation.  It  was 
held  valid.  The  testator  directed  a  corporation  to  be  formed. 
The  formation  of  such  a  corporation  was  impossible  under  the 
Illinois  laws  as  they  stood  at  the  time  of  the  testator's  death. 
Nevertheless,  the  court  upheld  the  gift  and  said  it  should  be 
enforced  cy  pres.  Ingraham  v.  In  graham,''^'*  sustained  the  va- 
lidity of  a  gift  to  a  hospital  to  be  founded  in  the  future,  on  the 
ground  that  it  was  an  immediate  gift  to  eliarity."^  In  Franklin 
V.  Hastings  «2  the  testator  provided :  ' '  For  the  purpose  of  aid- 
ing in  the  establishment  and  support  of  a  public  library  in  the 
village  of  Lexington,  Illinois,  and  in  honor  of  my  deceased 
parents,  I  direct,  empower  and  authorize  my  executor  to  hold 
and  apply  the  sum  of  ten  thousand  ($10,000)  dollars  as  follows: 
Upon  the  organization  of  a  regularly  incorporated  library  asso- 
ciation by  the  people  of  Lexington,  Illinois,  the  name  of  which 
corporation  shall  include  in  it  and  as  a  part  of  it  the  name  of 
Smith,  and  that  upon  provision  being  made  by  the  people  of 
Lexington,  Illinois,  and  such  other  persons  as  may  desire,  for  a 
fund  for  the  use  of  said  library  association  sufficient,  together 
with  the  fund  of  $10,000  aforesaid,  to  properly  establish  and 
maintain  said  library,  the  sufficiency  of  which  fund  shall  be  in 
the  discretion  of  my  said  executor  but  which  need  not  exceed 
the  sum  of  five  thousand  ($5,000)  dollars,  then  and  in  that  case 
my  said  executor  shall  pay  to  the  proper  officers  of  said  library 
association  the  said  sum  of  $10,000."  This  was  held  to  be  an 
immediate  and  unconditional  gift  to  charity. 

TITLE   XI. 
ACCUMULATIONS. 

Topic  1. 
Apart  from  the  Statute  on  Accumulations. 
§  699.    Accumulations  other  than  for  charity :     When  the 

future  interest  is  executory  and  there  is  a  provision  for  accu- 

be    supported.      The    charitable  be-       425,   and  Andrews   v.   Andrews,   110 
quest  there  was  held  valid  althou^jh       111.    22.3,    the   gift    was   an    inimodi 

the  gift   was   on   condition   that  the       ate  one  to  eharity.     There  was  sim- 
city  donated  a  lot.  ply   a   failure   to   name    trustees   to 

89  145  111.  625.  administer  the  trust. 

90  169  111.  432,  454-459.  92  253  111.  46,  48-49. 

91  In    Heuser    r.    Harris,    42  III. 

799 


§  700]  FUTURE    INTERESTS  [Ch.    XXVI 

mulation  in  the  meantime,  sneh  acenmulation  may  be  provided 
for  up  to  the  most  remote  time  at  which  the  future  interest  can 
vest  and"  still  be  valid.^^  If  the  executory  interest  does  not  vest 
within  the  time  prescribed  by  the  Rule  against  Perpetuities  and 
the  accumulation  is  to  continue  up  to  the  time  of  the  vesting  of 
the  future  interest,  then  the  future  interest  must  be  void,  and 
the  provision  for  accumulation,  if  it  is  part  of  the  testator's 
scheme,  in  connection  with  the  gift  which  is  too  remote,  will 
also  fail. 

Suppose  now,  that  the  interest  in  the  legatee  is  vested  at 
once  with  a  postponed  enjoyment  clause,  valid  under  the  doc- 
trine of  Clafiin  v.  Claflin,^'^  or  upon  any  other  ground,  with  a 
provision  for  accumulation  in  the  meantime.  The  accumulation, 
it  is  submitted,  may  continue  up  to  the  most  remote  time  that 
the  postponed  enjoyment  can  last.  If  it  is  to  continue  beyond 
that  time,  then  the  whole  postponement  is  void  and  the  trust 
for  accumulation  is  bad.  This,  however,  it  should  be  observed, 
is  not  an  application  of  the  Rule  against  Perpetuities,  but  of  the 
rule  which  limits  the  length  of  time  that  a  postponed  enjoyment 
clause  may  be  operative.^^ 

§  700.  Accumulation  for  charitable  purposes :  Suppose 
there  is  an  unconditional  gift  to  charity  with  a  direction  for 
accumulation  which  may  last  longer  than  a  life  or  lives  in  being 
and  twenty-one  years.  It  is  not  perceived  upon  what  ground 
the  clause  for  accumulation  can  be  void  for  remoteness.  If 
void  at  all,  it  must  be  because  it  is  an  improper  restraint  on 
alienation.  The  corporation,  association  or  trustees  directing 
the  charity  might  disregard  it  and  the  attorney-general  would 
not  be  allowed  to  enforce  it  for  the  same  reason  that  a  postponed 
enjoyment  upon  the  absolute  equitable  interest  of  an  individual, 
which  lasts  for  too  long  a  time,  might  be  disregarded  by  the 
cestui  and  by  the  trustees.^^  Whether  such  a  provision  for  ac- 
cumulation can  be  so  diregarded,  is,  perhaps,  not  yet  settled  in 
this  state. 

Assuming,  liowever,  that  the  direction  for  accumulation  may 
be  disregarded,  it  is  clear  that  the  doing  so  cannot  be  of  any 

93Rhoads  V.  Rhoads,  4:i  111.  239;  ^^  Post,     §737;     ante,    §§658    et 

Hale  V.  Hale,  125  111.   399;   Ingra-  seq. 

ham  V.  Ingraham,  169  111.  432,  450.  '■'«/(?. 

94  Post,  §  732. 

800 


Cm.  XX\'I|  rule  against  i-kki-ktuities  |  >^  702 

advantage  to  tlie  iicirs  at  law  of  the  testator,  for  as  against  them, 
the  whole  fund  is  at  once  payable  to  charity."'^ 

Topic  2. 

The  Statute  on  Accumulations. 

§701.  The  Thellusson  Act  re-enacted  in  Illinois:  The  Illi- 
nois Aet  of  1!)()7  '•''^  relating  to  aeeuniulations  is  substantially  a 
eopy  of  the  Thellusson  Aet.-'-*  The  English  eases  construing  the 
English  Aet  decided  prior  to  1907  are,  therefore,  authority  for 
the  construction  of  the  Illinois  Act.^  It  would  seem  that  no 
question  of  the  invalidity  of  any  clause  for  accumulation  can 
arise  till  at  least  twenty-one  years  after  the  Act  was  passed, 
because  the  (juestion  of  what  shall  be  done  with  the  income, 
whicii  cannot  be  accumulated,  can  only  arise  after  the  accumu- 
lation which  is  permitted  by  the  statute  has  been  effected.^  Our 
Supreme  Court  has  twice  indicated  that  under  the  terms  of  the 
statute  the  accumulations,  if  they  exceed  what  the  statute  per- 
mits, are  only  void  as  to  the  excess.-^  The  invalidity  of  a  clause 
for  accumulations  can  hardly  affect  the  validity  of  other  clauses.* 

TITLE  XII. 
CONSTRUCTION. 

§  702.  Attitude  of  the  court  in  handling  questions  of  con- 
struction which  must  be  determined  before  the  Rule  is  applied : 
I\Ii-.  (J ray  thus  summed  u])  the  attitude  announced  by  the  Eng- 
lish judges:'"'  "The  Rule  against  Perpetuities  is  not  a  rule  of 
construction,  b\it  a  pei-emptoi-y  command  of  law.  It  is  not,  like 
a  rule  of  construction,  a  test,  more  or  less  artificial,  to  determine 
intention.  Its  object  is  to  defeat  intention.  Therefore,  every 
provision  in  a  will  or  settlement  is  to  be  construed  as  if  the  rule 

9T  Ingraham  v.  Ingraham,  169  111.  2  French   v.  Calkins,  252   111.   24.^, 

4.'}2.  254. 

9«Laws   1907,   p.    1.  3  French  v.   Calkins,  supra;   Kolb 

39 .39    and    40    Geo.    Ill,    ch.    98  r.  Landes,  277  111.  440,  449. 

(1800).  4Kolh   V.  Landes,  »upra. 

1  For   an    exposition   of   the   Eng-  ■'>  Gray 's    Rule    against    Perpetiii- 

lish    cases    construing    the    English  ties,  §  629. 
Act,   see  Oray  's   Rule   against    Per- 
petuities, U  686  et  seq. 

Kales  Fut.  Int. — 51  OQI 


§  703]  FUTURE    INTERESTS  [Cn.    XXVI 

did  not  exist,  and  tlien  to  the  provision  so  construed  the  rule 
is  to  be  remorselessly  applied.''  Our  Supreme  Court  in  Dime 
Savings  and  Trust  Company  v.  Watson  «  approved  this  attitude 
and  the  English  cases  which  announced  it. 

Mr.  Gray,  however,  says:^  "There  is  a  legitimate  use  of  the 
Rule  against  Perpetuities  in  matters  of  construction.  When  the 
expression  which  a  testator  uses  is  really  ambiguous,  and  is  fairly 
capable  of  tAvo  constructions,  one  of  which  would  produce  a 
legal  result,  and  the  other  a  result  that  would  be  bad  for  re- 
moteness, it  is  a  fair  presumption  that  the  testator  meant  to 
create  a  legal  rather  than  an  illegal  interest."  It  should  be 
observed  that  this  presupposes  a  case  w^here  the  two  possible 
constructions  are  evenly  balanced,  and  where  there  is,  in  con- 
sequence, an  actual  ambiguity.  It  does  not  mean  that  where 
the  highest  degree  of  ingenuity  can  demonstrate  that  there  are 
two  possible  constructions  the  court  may  adopt  that  which  does 
not  offend  the  rule.  Our  Supreme  Court  has  several  times  de- 
clared the  rule  to  be  that  "w^here  a  will  is  susceptible  of  two 
constructions,  one  of  which  will  render  it  valid  and  the  other 
void,  courts  will,  if  they  can  do  so  without  doing  violence  to  the 
intention  of  the  testator,  adopt  the  construction  that  will  render 
the  will  valid. ^  This  probably  means  what  Mr.  Gray  says.  As 
worded,  however,  it  takes  the  emphasis  away  from  the  idea  that 
the  two  constructions  must  be  fairly  balanced  so  that  a  real 
ambiguity  arises. 

§  703.  Modifying  clauses :  The  English  cases  adopted  a 
special  rule  with  regard  to  modifying  clauses.  Mr.  Gray  states 
it  as  follows :*>  "When  there  is  a  good  absolute  gift,  and  the 
settlor  or  testator  goes  on,  in  an  additional  clause,  to  modify 
the  gift,  and,  by  modifying  it,  makes  it,  in  part,  too  remote, 
tlie  modification  is  rejected  in  toto,  and  the  original  gift  stands. 
Thus  if  land  is  devised  to  an  unborn  child  in  fee,  and  by  a  sub- 
sequent clause  of  the  will  the  testator  directs  that  the  land  so 
devised  shall  be  settled  on  such  child  for  life,  remainder  to  its 
children  in  fee,  which  remainder  is  void  for  remoteness,  the 
whole  modifying  clause  is  disregarded,  and  the  child  takes  a 

C254  111.  419,  427.  429;    McCutcheon   v.   Pullman   T.   & 

7  Gray's    Eule    against  Perpetui-       S.  Bank,  251   111.  .550,  555. 

ties,  §  633.  9  Gray's    Rule    against    Perpetui- 

sHeisen    v.    Ellis,    247  111.    418,       ties,  §423. 

802 


Ch.    XXVI]  RULE    AGAINST    PERPETUITIES  [§  704 

i'eo  simple."  This  rule  was  applied  l)y  om-  Supreme  Court  in 
('(trpcntcr  v.  Hubbard.^"  There  a  clause  at  the  beginning  of 
the  will  fixed  a  period  of  distribution  which  did  not  violate  the 
itilc.  A  later  clause  altered  the  time  of  distribution  so  that  the 
rule  was  violated.  It  was  insisted  in  argument  that  of  two 
eonfiieting  clauses  in  a  will,  the  later  one  represented  the  ex- 
pressed intent  and  the  validity  of  the  entire  will  must  be  judged 
with  reference  to  that  expressed  intent  alone,  and  hence  the 
ultimate  gift  was  void  for  remoteness.  This  the  court  denied 
and  applying  the  rule  as  to  modifying  clauses,  rejected  the 
period  of  distribution  as  stated  in  the  latter  part  of  the  will, 
and  ])ermitted  the  intent  as  expressed  in  the  first  part  of  the 
will,  as  to  the  period  of  distribution,  to  stand. 

TITLE  XIII. 
ESTOPPEL  AND  ELECTION. 

^  704.  One  who  has  received  an  interest  devised  by  a  will 
is  not  precluded  from  attacking  the  provisions  of  the  same  will 
on  the  ground  that  they  violate  the  Rule  against  Perpetuities : 

The  Rule  iigainst  Perpetuities  is  a  rule  founded  upon  public 
policy  which  individuals  cannot  waive  to  the  detriment  of  the 
public.  It  is  true  that  it  is  left  to  the  interest  of  individuals  to 
vindicate  the  rule.  But  the  rule  itself  is  none  the  less  one  in 
which  the  public  is  so  much  interested,  that  the  individual  is 
not  permitted  to  estop  himself  from  asserting  its  application. 
It  seems,  therefore,  to  be  the  rule  that  an  heir  claiming  property 
because  a  limitation,  in  violation  of  the  Rule  against  Perpe- 
tuities, fails,  is  not  precluded  from  asserting  his  right  to  it 
merely,  because  he  has  taken  benefits  under  valid  provisions  of 
the  will.ii 

10  263  111.571.  Y.)    193,    204;     Walker    v.    Taylor, 

11  Sehukneeht  v.  Sehultz,  212  111.  1.1  App.  Div.  452,  457-458;  44  N. 
43,  48;  Mason  v.  Bloomington  Li-  Y,  Supp.  446;  Staples  v.  Hawes, 
brary  Assn.,  237  111.  442;  In  re  24  Misc.  Rep.  (N.  Y.)  475,  480; 
Oliver's  Settlement,  [1905]  1  Ch.  In  re  Durand,  56  Misc.  Rep.  (N. 
191,     198-199;     In     re     Walkerly's  Y.)  235,  240. 

Estate,   108  Cal.   627,   658-659;    Fi-  The    dictum    in    the    opinion    of 

field  V.  VanWyck,  94  Va.  557,  562;  Judge   Tuley,   set   out  at  length   in 

In   re    Schmidt's    Estate,    15    Mont.  Madison  r.  Larmon,  170  111.  65,  82, 

117;  Bowers  v.  Smith,  10  Paige  (X.  if   it  he  to  the  contrary,  cannot   be 

803 


4 
§  705]  FUTURE    INTERESTS  [Ch.    XXVI 

TITLE  XIV. 

EFFECT    OF    FAILURE    OF    SOME    LIMITATIONS    FOR 
REMOTENESS    ON   OTHERS.12 

Topic  1. 

Effect  on  Prior  Limitations  Not  Too  Remote  When  Subse- 
quent Limitations  Fail  For  Remoteness. 

§  705.  General  rule  as  stated  by  our  Supreme  Court  in 
Barrett  v.  Barrett:  '•'  Whenever  some  one  or  more  of  the 
limitations  of  a  will  are  void  for  remoteness,  the  important  prac- 
tical qnestion  at  once  arises,  how  far  will  the  valid  limitations 
also  fail.  In  the  recent  case  of  Barrett  v.  Barrett, ^■^  the  court 
laid  down  the  general  rules  as  follows:  "Where  several  trusts 
are  created  by  will  which  are  independent  of  each  other  and  each 
is  complete  within  itself,  some  of  which  are  lawful  and  others 
are  unlawful,  and  which  may  be  separated  from  each  other, 
the  illegal  trusts  may  be  cut  out  of  the  will  and  the  legal  ones 
permitted  to  stand."  On  the  other  hand,  "when  some  of  the 
trusts  in  the  will  are  legal  and  some  are  illegal,  if  they  are  so 
connected  together  as  to  constitute  an  entire  scheme  for  the  dis- 
position of  the  estate,  so  that  the  presumed  wishes  of  the  tes- 
tator Avould  be  defeated  if  one  portion  were  retained  and  other 
portions  rejected,  or  if  manifest  injustice  would  result  from 
such  construction  to  the  beneficiaries  or  to  some  of  them,  then 
all  the  trusts  must  be  construed  together  and  all  must  stand  or 
all  must  fall."  These  general  statements  do  not  go  very  far  in 
determining  results  in  particular  cases.  The  question  still  re- 
mains, when  are  the  gifts  separable  and  when  are  they  insep- 
arable? When  is  it  to  be  held  that  the  presumed  wishes  of  the 
testator  would  be  defeated  if  one  portion  were  retained  and  other 
portions  rejected  ?     When  does  manifest  injustice  result  from 

regarded   as  law.     The   remarks   of  to  the  residuary  legatee,  so  that  the 

the  learned  judge  were  unnecessary  residuary   legatee   was  in   the  posi- 

to    the    decision.      The    recent    case  tipn  of  taking  the  residue  under  the 

in     this     state     of     Schuknecht     v.  will  and  also  of  increasing  his  resid- 

Schultz,  212  111.  43,  is  directly  co7i-  uary   gift   by   urging  the   invalidity 

tra  to  Judge  Tuley's  dictum.     The  of  one  of  the  bequests. 

decision    in   Mason    v.   Bloomington  12  Compare  ante,  §§  642,  661. 

Library  Assn.,  237   111.  442,  is  also  r- 2r)5  III.  ;{32,  .338. 

contra,    because    there    the    legacy  i  ■»/(?. 
which  was  void  for  remoteness,  went 

804 


Ch.    XXVI  I  RULE    AGAINST    I'EKl'KTl  ITIKS  |  $5  706 

a  const  ruction  uliicli  sustains  some  portions  of  the  will  while 
others  are  eliminated?  It  is  only  when  we  come  actually  to 
classify  all  results  reached  that  we  obtain  any  insight  into  the 
considerations  which  induce  the  court  to  answer  these  ques- 
tions one  way  or  the  other. 

§  706.  Cases  where  the  court  held  that  the  limitations  not 
void  for  remoteness  should  be  enforced:  In  Iluuc  v.  Ilo^lfjr  •' 
we  have  tlic  devise  of  a  residue  to  trustees  to  convert  and  di- 
vide the  i)rincipal  amonj;  all  the  testator's  «>:randchildren,  so  as 
to  vest  an  interest  in  them  at  l)irtli,  but  subject  to  a  postpone- 
ment of  payment  of  tlie  principal  until  each  arrived  at  thirty 
years  of  a<2,'e.  Then  there  was  a  gift  over  if  any  grandchild  died 
before  that  age.  The  gift  over  was  lield  void  for  remoteness, 
but  the  original  gift  to  the  grandchildren  stood.  This  was  in 
spite  of  the  fact  that  there  was  a  trusteeship  and  because  the 
valid  gift  was  the  disposal  of  an  absolute  interest  in  the  corpus 
of  the  estate  direct  to  the  grandchildren.  This  is  the  controlling 
feature  noted  in  Barrett  t'.  Barrett}^ 

In  Xeritf  v.  ^Vooc]hun^^''  a  devise  was  made  to  the  testator's 
son  for  life,  with  a  remainder  in  fee  to  his  children,  with  a  gift 
over  if  he  died  childless  to  the  families  of  the  testator's  brothers. 
The  gift  over  was  void  for  remoteness.  It  was  held,  however, 
that  this  did  not  invalidate  the  gift  to  the  grandchildren.  The 
court  said  that  there  was  no  such  connection  between  the  limi- 
tations as  required  both  to  stand  or  fall  together  and  that  no 
injustice  was  done  by  permitting  the  valid  part  to  stand.  In 
Barrett  ik  Barrett,  the  following  characteristics  are  noted  as 
controlling  the  decision:  (1)  That  there  was  no  trusteeship. 
The  estates  were  legal.  (2)  The  valid  portion  of  the  will  in- 
cluded i\  life  estate  and  a  disposition  of  the  fee  directly  and  ab- 
solutely, the  void  part  being  a  gift  over  after  such  disposition  in 
fee.  Hence,  with  the  gift  over  eliminated,  there  was  a  simple 
life  estate  with  ;i  vested  and  indefeasible  interest  in  fee  in  re- 
mainder. 

In    ChapiiKiii    r.   Cltoirif^^   the  trustees  appear   to   have   had 
only  a  legal  estate  for  the  life  of  the  son,  upon  trust  for  the  son 
for  life,  with  legal  remainders  to  the  son's  children  vesting  in 
interest  at  once  (as  the  court  construed  the  will),  with  a  post- 
15  i.^l'  III.  252.  IT  190  111.  283. 
16  255  111.   332,  346.  is  191   111.  574. 

805 


§  706]  FUTURE    INTERESTS  [Ch.    XXVI 

ponement  of  payment  until  the  grandchildren  reached  thirty, 
and  a  gift  over  if  any  died  before  reaching  that  age.  The  gift 
to  the  grandchildren  was  valid  and  the  gift  over,  if  they  died 
under  thirty,  was  void.  The  court  held,  however,  that  the  valid 
portions  of  the  will  should  stand  and  be  enforced.  The  charac- 
teristics noted  in  Barrett  v.  Barrett,  for  this  result  were  (1) 
the  absence  of  a  trusteeship  covering  the  remainder  and  gifts 
over;  (2)  the  fact  that  the  valid  parts  of  the  will  include  a 
life  estate  and  a  disposition  of  the  remainder  in  fee  simple, 
so  that  when  the  ultimate  gift  over  was  held  void  there  remained 
a  life  estate  and  a  vested  and  indestructible  fee  in  remainder. 

In  Johnson  v.  Prcston,^^  land  was  (as  the  court  construed  the 
will)  devised  to  trustees  to  take  effect  from  and  after  the  pro- 
bate of  the  will  and  to  continue  thereafter  for  twenty-five  years. 
This  was  held  void  for  remoteness.  The  beneficial  interests, 
however,  (as  the  court  construed  them)  were  in  presenti  to  J. 
R.  P.  and  G.  H.  P.  and  after  the  twenty-five  years  the  land  to 
go  to  them  "or  their  heirs."  This  last  phrase  "or  their  heirs" 
seems  to  have  been  taken,  following  Ortmayer  v.  Elcock,^^  as  if 
it  indicated  merely  that  the  persons  named  were  to  take  the  fee. 
There  was  an  annuity  given  of  $100  a  year  for  the  twenty-five 
year  period  or  the  life  of  the  annuitant.  The  heirs  filed  a  bill 
for  partition  on  the  theory  that  the  entire  will,  because  of  the 
remote  limitation  to  trustees,  failed.  The  bill  was  dismissed  and 
this  was  affirmed  by  the  Supreme  Court.  It  was  clear  to  the 
court  that  the  gift  to  the  trustees  was  void  for  remoteness,  but 
it  was  denied  that  the  devise  to  the  trustees  v/as  so  connected 
M'ith  the  limitations  to  the  beneficiaries  that  the  latter  could  not 
be  enforced.  The  annuity  was  enforced  as  a  charge  against  the 
land.  From  the  point  of  view  of  what  is  manifest  justice  and 
also  the  presumed  intent  of  the  testator,  this  result  seems  proper 
enough.  The  trusteeship  is  the  subordinate  thing  and  the  bene- 
ficial interest  the  main  thing.  There  is  no  reason,  therefore,  why 
the  illegality  of  the  former  should  carry  down  the  latter.  In 
Barrett  v.  Barrett,  however,  the  court  speaking  by  Mr.  Justice 
Hand,  seems  to  suggest  that  the  will  was  in  effect  entirely  set 
aside,  the  property  passing  as  intestate  estate,  and  that  the  court 
did  in  effect  find  the  trusteeship  and  beneficial  interests  so  bound 
up  together  that  when  the  former  failed,  the  whole  failed.     The 

19  226  111.  447.  20  225  111.  342. 

806 


Ch.    XXVI J  RULE    AGAINST    PERPETUITIES  [§  706 

court  said:  ''The  entire  trust  was  lield  void  and  the  estate 
intestate."  We  do  not  so  understand  the  scope  of  the  court's 
opinion  in  Johnson  v.  Preston. 

In  Quinlan  v.  Wickman^-^  the  trustee  took  an  absolute  interest 
in  the  trust  estate  upon  trust  for  the  testatrix's  child  Elizabeth 
for  life,  then  to  such  of  her  children  as  reached  thirty,  with  a 
gift  over  on  two  contingencies,  (1)  if  Elizabeth  died  leaving 
no  children;  and  (2)  if  she  died  leaving  children  who  died  be- 
fore they  reached  thirty;  then  over  to  Nellie  absolutely.  The 
gift  to  the  children  of  Elizabeth  at  thirty  was  void;  also  the  gift 
over  on  the  contingency  that  Elizabeth  died  leaving  children  and 
they  died  under  thirt}'.  A  bill  was  filed  by  the  heirs  at  law  for 
partition  on  the  theory  that  the  whole  will  failed.  The  bill 
was  dismissed.  This  was  affirmed  because,  while  part  of  the 
will  was  void,  yet  the  life  estate  in  Elizabeth  was  valid  subject 
to  a  valid  gift  over  if  she  died  without  leaving  any  children. 
Hence,  although  the  heirs  had  a  vested  reversionary  trust  pend- 
ing the  happening  of  Elizabeth's  dying  leaving  children,  yet  since 
it  was  uncertain  ever  to  vest  in  possession,  they  could  not  have 
partition.  Here,  then,  the  valid  portions  of  the  will  Avere  sus- 
tained (1)  although  there  was  a  trusteeship  covering  the  in- 
valid as  well  as  the  valid  gifts;  (2)  although  one  valid  gift  was 
in  the  same  clause  and  a  part  of  the  same  sentence  with  the  void 
gift  over;  and  (3)  although  the  sustaining  of  the  valid  portion 
resulted  in  Elizabeth  having  a  life  estate  and  also  a  share  as 
heir  if  the  event  of  her  dying  leaving  no  children  did  not  hap- 
pen. It  very  likely  appeared  to  the  court  tliat  the  will  indicated 
a  general  purpose  on  the  part  of  the  testator  to  prefer  Eliza- 
beth and  Nellie  to  the  rest  of  his  heirs  at  law  and  that  he,  there- 
fore, made  these  special  provisions  for  them  by  his  will.  To 
hold  them  all  invalid  would  be  to  defeat  that  purpose  complete- 
ly and  divide  the  property  set  aside  for  Elizabeth  and  Nellie 
between  the  heirs  at  law.  Hence  it  probably  seemed  fair  and 
reasonable  to  the  court  to  sustain  the  special  gifts  for  Eliza- 
beth and  Nellie  as  far  as  possible.  This  the  court  was  able  to 
do  by  giving  Elizabeth  her  life  estate  and  sustaining  the  gift 
over  to  Nellie  in  the  one  contingency  of  Elizabeth  dying  with- 
out leaving  children.  On  the  other  hand,  if  Elizabeth  died 
leaving  children,  the  gift  over  would  not  take  effect;  Elizabeth 

21233  TU.  39. 

807 


§  707]  FUTURE    INTERESTS  [Cu.    XXVI 

would  inherit  part  of  tho  fee  and  be  able  to  dispose  of  it  to  lier 
children. 

In  Moroncy  i\  Haas'-'-  the  situation  was  very  similar  to  that 
in  the  last  case.  There  was  created  a  trusteeship  for  Sadie 
(one  of  the  testatrix's  heirs  at  law)  for  life,  then  to  her  children 
or  issue  of  a  deceased  child,  wij;li  a  gift  over  "in  case  no  such 
children  or  issue  of  deceased  cliildren  shall  survive"  the  life 
tenant,  "or  in  case  no  surviving  child  shall  attain  the  age  of 
twenty-tive  ^-ears  and  all  shall  die  without  issue,"  to  James 
Hill  (another  one  of  several  heirs  of  the  testatrix).  The  gift 
over  on  the  first  contingency  was  valid ;  on  the  latter  void ;  yet 
only  the  invalid  portion  was  rejected. 

§  707.  Cases  where  the  valid  portions  of  the  will  failed 
along  with  the  invalid:  In  Lawrence  v.  Smith -^^  the  testator 
gave  all  his  property  to  trustees  to  pay  annuities  to  two  sons 
and  a  daughter  and  to  pay  to  each  of  three  daughters,  A,  B 
and  C,  six  hundred  dollars  annually  during  their  lives,  and 
upon  their  death  to  pay  three  hundred  dollars  to  each  of  their 
children  till  such  children  reached  twenty-five,  and  then  to  pay 
such  children  each  .$10,000.  The  gift  of  $10,000  was  valid  to 
each  child  born  during  the  life  of  the  testator.  After  the  pay- 
ment of  all  of  the  above  sums  the  testator  directed  the  principal 
of  his  estate  to  be  paid  to  his  grandchildren  then  living.  This 
last  was  void  for  remoteness.  It  was  decided  that  all  the  above 
mentioned  gifts  failed  because  the  ultimate  limitation  over  was 
void  for  remoteness.  This  was  affirmed.  Here  there  was  a 
trusteeship  covering  all  the  gifts.  Furthermore,  the  gift  of 
$10,000  to  each  grandchild  was  contingent  on  such  grandchild 
reaching  twenty-five.  Hence  with  the  ultimate  gift  over  elimi- 
nated there  was  no  absolute  and  direct  gift  of  the  corpus  of  the 
estate  to  any  beneficiary.  There  was  left  merely  the  annuities, 
the  payment  of  sums  to  the  daughters  for  life  and  to  the  grand- 
children till  each  reached  twenty-five.  This  situation  presents 
some  distinction  from  that  presented  in  Tlotve  v.  Hodge,^'^  Nevitt 
V.  Woodburn,-^  and  Chapman  v.  Cheney.^*'  In  spite  of  this  dis- 
tinction, however,  the  gifts  can  hardly  be  said  to  be  inseparable 
so  far  as  the  language  used  is  concerned.     The  result  seems  to 

22  277  111.  467.  25  190  111.  283. 

23  163   111.    149.  2«  191  111.  574. 

24  152  111.  252. 

808 


Ch.    XXVI I  KILE    AGAINST    PERPETUITIES  [§707 

be  based  fjilhcr  upon  the  ^m'oiiikI  of  whal  is  iiiaiiii'estl.\-  just 
under  all  the  eireuiiistaiiees,  or  is  a  guess  as  to  what  the  tes- 
tator would  have  desired  had  he  known  that  the  ultimate  gift 
over  was  void,  or  perhaps  both.  On  the  question  of  the  injustice 
of  sustaining  tiie  valid  limitations  the  court  probably  observed 
that  to  sustain  the  annuities  and  gifts  to  daugiiters  and  their 
children  till  each  reached  twenty-five,  and  the  payment  of  $10,000 
to  each  grandchild  living  at  the  testator's  death  who  reached 
twenty-tive,  would  in  fact  tie  up  the  distribution  of  the  entire 
estate.  The  children,  as  the  testator's  heirs  at  law,  would  be 
ultimately  entitled,  subject  to  deductions  for  indefinite  amounts, 
which  would  i)i-event  the  distribution  as  long  as  they  lived. 
Such  a  situation  no  doubt  appealed  to  the  court  as  unjust  to 
the  children.  It  no  doubt  also  appealed  to  the  court  that  the 
testator,  undei-  the  circumstances,  would  have  desired  his  chil- 
dren to  receive  the  estate  at  once  rather  than  that  they  should 
actually  have  an  equitable  ownershij)  in  it  without  being  able 
to  obtain  a  distribution.  As  the  testator's  children,  who  were 
his  heirs  at  law,  and  their  families  were  all  treated  substantially 
alike,  there  was  absent  the  situation  presented  in  Qidnhni  v. 
Wickma>ir''  where  the  testator  was  specially  preferring  two  of 
his  heirs  over  the  remainder.  According  to  Gray  -^  our  Supreme 
Court  made  a  very  j)oor  guess  as  to  what  the  testator  would 
have  intended  had  he  known  the  ultimate  limitation  was  void. 
If.  however,  guessing  as  to  what  the  testator  would  have  in- 
tended is  permi.ssible,  it  is  on  the  whole  futile  to  complain  that 
the  court  has  not  made  as  good  a  guess  as  it  ought  to. 

In  Eldred  v.  Meek,-''  there  were,  by  clauses  4.  5  and  6,  gifts 
of  separate  parcels  to  named  grandchildren,  contingent  upon 
their  reaching  twenty-five.  These  were  valid.  Then  by  clause 
10  there  was  a  gift  over  if  the  grandchildren  died  under  that 
age.  to  such  children  of  them  as  reached  twenty-five.  This  was 
void.  It  was  held  that  because  the  gift  over  in  clause  10  failed. 
the  separate  contingent  gifts  in  clauses  4.  o  and  6  failed  also. 
The  situation  presented  here  was  like  that  in  Lawrence  v. 
Smith,-'"  to  this  extent,  that  there  was  a  trusteeship  covering 
all   the  gifts   and   the  gifts  which    were   valid   were   contingent 

-•■2:53  111.  :\9;  ante,  §706.  ^^n  183   111.   26. 

-•8  Gray's   Rule    against   Perpetui-  ^'o  163  111.  149. 

ties,  2iul  nncl  .Trd  pd.,  §  249e'. 

809 


§  707]  FUTURE    INTERESTS  [Ch.    XXVI 

upon  the  devisees  reaching  twenty-five,  so  that  with  the  gifts 
over  eliminated  there  was  no  absolute  present  gift  to  any  de- 
visee. Here,  however,  the  testatrix's  only  heir  at  law  seems 
to  have  been  her  child.  The  gifts  to  the  grandchildren  were 
gifts  to  the  children  of  the  testatrix's  only  child.  Hence  if 
the  gift  over  were  held  void  and  the  valid  portions  of  the  will 
sustained,  the  fee  would  not  go  to  the  grandchildren  but  to 
the  testatrix's  only  child,  subject  to  be  divested  if  the  grand- 
children reached  the  age  of  twenty-five.  If  the  gifts  to  the 
grandchildren  are  entirely  eliminated,  then  the  daughter  would 
obtain  the  whole  property  as  intestate  estate.  As  the  daughter 
was  given  one-fourth  of  the  personal  property  absolutely,  there 
would  seem  to  be  a  clear  purpose  on  the  part  of  the  testatrix 
to  prefer  her  grandchildren  by  giving  them  specific  portions 
of  her  estate  when  they  reached  tv/enty-five.  Following  the 
decision  of  the  court  in  Quinlan  v.  Wickman,^^  it  might  have  been 
expected  that  the  purpose  of  the  testatrix  would  be  carried  out 
as  far  as  possible  by  permitting  the  specific  gifts  to  the  grand- 
children to  stand.  It  is  difficult  to  perceive  any  ground  in  the 
supposed  intent  of  the  testator,  or  as  a  matter  of  justice  to  the 
daughter,  for  holding  void  the  valid  gifts  to  the  testatrix's 
grandchildren  who  reached  twenty-five. 

In  Owsley  v.  Harrison,^'^  one  share  of  the  estate  was  to  be 
kept  together  for  two  years  after  the  testator's  death,  and  one- 
half  of  such  share  was  devised  to  the  testator's  children  for 
life,  and  on  the  death  of  any  one  of  them  within  the  two  years 
leaving  issue,  such  surviving  issue  should  take  a  life  estate  with 
a  remainder  to  the  heirs  of  their  bodies.  The  remainder  to  the 
heirs  of  the  body  was  void  for  remoteness.  The  court  held 
that  the  life  estates  failed  along  with  the  gift  over  and  there 
was  an  intestacy.  HerQ  there  appears  to  have  been  no  trustee- 
ship. But  if  the  ultimate  gift  over  only  was  held  invalid  the 
children  would  have  taken  life  estates,  with  a  succeeding  life 
estate  to  their  children  and  an  ultimate  fee  in  the  children  of 
the  testator  themselves  as  heirs  at  law.  Thus,  the  children  of 
the  testator  would  have  had  the  fqe  subject  to  a  possible  life 
estate  after  their  death.  This  would  have  prevented  distribu- 
tion at  once  and  caused  the  inconvenience  in  the  matter  of  dis- 
position which  such  contingent  estates  make.    This  inconvenience 

31  233  111.  39.  ^'- 190  111.   235. 

810 


Cn.    XXVI J  RULE    AGAINST    PERPETUITIES  [§  707 

was  avoided  by  the  elimination  of  the  secojid  life  estate,  thus 
giving  the  children  of  the  testator  the  fee  at  onee. 

In  ntzel  V.  Schneider, '•^'•^  there  was  a  trust  for  the  widow  for 
life  of  an  annuity  and  then  a  provision  that  tlie  income  should 
go  to  two  children  of  the  testator  for  their  lives.  Then  there 
was  a  gift  over  to  all  the  testator's  grandcliildren  when  they 
reached  twenty-five.  It  was  held  that  the  last  was  clearly  void 
and  that  this  resulted  in  the  whole  trust  failing  and  an  intestacy. 
The  language  of  the  court  on  this  point  is  very  brief.  It  should 
be  noted  that  the  wife  had  died  before  the  testator,  so  that 
there  was  no  question  about  the  validity  of  her  annuity.  The 
two  children  who  received  the  income  at  the  widow's  death 
were  the  testator's  only  heirs  at  law.  Hence  when  the  ulti- 
mate gift  failed  they  took  as  heirs  at  law  the  remainder,  and 
having  an  equitable  life  estate  also,  they  might  well  say  that 
they  had  the  entire  equitable  interest  and  the  trusts  should  be 
wound  up.  The  remarks  of  the  court  might  be  regarded  as 
applicable  to  this  precise  situation. 

In  lieid  v.  Voorhees,^^  there  was  no  tru.steeship.  The  third 
clause  disposed  of  the  rents  of  land  to  nephews  and  nieces  for 
thirty  years.  If  during  that  time  any  died  without  an  heir,  his 
or  her  share  was  to  go  to  the  living  heirs.  By  the  fifth  clause 
all  the  property  devised  by  the  third  clause  went,  after  thirty 
years,  to  the  nephews  and  nieces  or  their  heirs.  The  last  was 
void  for  remoteness.  This  was  held  to  carry  down  with  it  the 
third  clause,  because,  otherwise,  a  mere  gift  of  rents  for  thirty 
years  would  be  left  with  no  further  disposition  of  the  property. 
Then  the  question  arose  as  to  the  second  clause.  That  gave  the 
residue  of  personal  property  to  two  nephews.  There  was  no 
verbal  connection  between  the  gift  by  the  second  clause  and 
that  by  the  third  clause.  The  properties  given  by  each  clause 
were  distinct.  Yet  the  court  held  that  the  second  clause  failed 
with  the  third  and  fifth.  The  second  clause  disposes  of  personal 
property  to  two  nephews.  The  third  clause  disposes  of  real 
estate  to  other  and  different  nephews  and  nieces.  There  was  no 
trusteeship.  AVhy  should  the  failure  of  the  gift  in  the  third 
clause  carry  with  it  the  gift  in  the  second  clause?  The  only 
explanation  seems  to  be  that  hy  holding  the  second  clause  in- 
valid the  court  was  able  to  distribute  the  testator's  property 

3^216  111.   87,  98.  34  216  111.  236. 

811 


§  707]  FITURE    INTERESTS  [Ch.    XXV.I 

to  the  two  nephews  named  in  the  second  ehuise  and  the  nephews 
and  nieces  named  in  tlie  third  clause  in  the  proportions  which 
the  court  believed  the  testator  intended.  The  .personal  property 
devised  by  the  second  clause  and  the  real  estate  devised  by 
the  third  were  practically  equal  in  value.  If  there  was  an  in- 
testacy witii  respect  to  the  property  named  in  both  clauses  then 
the  two  nephews  named  in  the  second  would  take  one-half  the 
personalty  and  ojie-half  the  real  estate,  which  was  about  ec^ual 
to  the  value  of  all  the  personalty  named  in  the  second  clause. 
The  other  nephews  and  nieces  would  take  one-half  the  personalty 
and  one-half  the  realt}',  which  was  about  equal  in  value  to  the 
real  estate  named  in  the  third  clause.  This  seemed  to  the  court 
a  practically  equitable  result.  On  the  other  hand,  if  the  third 
clause  were  held  void  and  the  second  sustained,  the  two  nephews 
named  in  the  second  clause  would  receive  one-half  the  real  estate 
attempted  to  be  devised  by  the  third  clause  in  addition  to  what 
the}'  received  by  the  second.  This  seemed  to  the  court  inanifest 
injustice.  They  probably  said  to  themselves  that  the  testator 
would  not  have  so  intended  had  he  known  that  the  gift  in  clause 
three  had  failed. 

Dime  Savings  Co.  v.  Watson,^^  and  Barrett  v.  Barrett,"*' 
present  a  situation  very  like  Oivslejj  v.  Harrison,  except  that 
the  interests  were  all  equitable.  In  Dime  Savings  Co.  v.  Wat- 
son the  testator  gave  nine-tenths  of  the  income  of  the  estate 
held  b}^  trustees  to  nephews  and  nieces  and  the  lineal  descend- 
ants of  any  deceased  nephew  or  niece  until  twenty  years  after 
the  death  of  the  last  surviving  nephew  and  niece,  when  there 
was  to  be  a  division  among  th?  testator's  grandnephews  and 
nieces.  The  ultimate  gift  over  was  void.  Tf  the  rest  had  stood 
it  would  have  left  the  nephews  and  nieces  who  were  the  tes- 
tator's heirs  at  law  to  take  the  income  for  life,  with  a  gift  of 
the  income  to  their  lineal  descendants  for  a  further  period, 
with  the  ultimate  interest  in  the  nephews  and  nieces  as  heirs 
at  law.  Thus,  the  nephews  and  nieces  would  fail  in  securing 
an  actual  distribution  because  of  the  very  slight  interest  of 
their  lineal  descendants,  who  might  just  as  w^ell  take  their 
chances  of  receiving  an  interest  from  their  parents  direct.  Hence 
all  the  limitations  above  named  were  held  to  fail.  So  in  Barrett 
V.  Barrett,  after  a  life  estate  to  the  wife,  there  was  a  gift  of 

85  254  111.  419.  36  255  111.  332. 

.  812 


ClI.    XX\'1|  KL'LE    -UiAJN.ST    I'EHI'IJTLITIES  [§'08 

an  im<livi(lc(l  oiK'-t'ourtli  to  each  of  ro\ir  sons  tor  lite,  with  a 
gfil't  of  each  sharp  to  the  children  or  issue  of  the  sons  for  life, 
with  a  gift  over  of  the  absolute  interest  to  the  lawful  issue 
and  nexl  of  kin  of  jjrandchildrcn.  There  was  a  trusteeship 
over  all  the  interests.  The  ultimate  gift  was  void,  if  the  other 
gifts  had  stood  there  would  have  been  life  estates  to  the  chil- 
dren and  grandchildren  and  an  ultinuite  gift  over  by  descent 
to  tin;  children.  The  siluatioji  would  have  been  inconvenient 
for  the  ciiildren,  since  while  having  praetieally  the  entire  in- 
terest, tliei'e  could  l)e  no  distribution,  because  of  the  life  estate 
in  their  children.  If  the  children  took  the  entire  estate  at  once 
their  childi-en's  interests  would  be  sufficiently  protected  by 
reason  of  the  fact  that  they  would  naturally  take  ultimately 
from  their  jiarents.     All  the  gifts  were  held  to  fail. 

J;  708.  Summary  of  conclusions  from  the  cases :  1 .  When 
the  fee  simple  or  absolute  interest  in  property  is  disposed  of  by 
a  valid  provision,  either  with  •""  or  without  -'^  the  introduction 
of  a  preceding  life  estate,  and  onh'  the  gift  over  which  defeats 
the  fee  or  absolute  interest  is  void,  the  valid  disposition  will 
stand.  If  there  is  no  trusteeship  of  the  property  disposed  of 
absolutely  or  in  fee,  this  conclusion  is  aided,-"^^  but  it  will  be 
reached  even  when  there  is  a  trusteeship.'*'^ 

2.  On  the  other  hand,  w'here  there  is  a  succession  of  life 
estates,  with  an  ultimate  gift  of  the  absolute  interest  which 
is  void  for  remoteness,  and  the  first  life  tenants  are  the  heirs 
at  law,  all  the  limitations  will  fail  and  there  will  be  an  intestacy. 
It  makes  no  difference  that  there  is  a  trusteeship.-" 

8.  Suppose,  after  a  life  estate,  there  is  limited  a  contingent 
gift  over  of  the  fee  or  absolute  interest  which  is  valid,  and 
another  contingent  gift  of  the  same  property  which  is  void,  and 
the  trusteeship  covers  all  the  gifts:  (a)  If  the  life  tenants  arc 
the  heirs  at  law-  who  take  ultimately  and  there  is  no  plan  to 
prefer  some  to  others,  then  all   the  interests  will   fail   and  the 

3T  Novitt    r.    Woodburn,    190    111.  (as  to  the  third  clause)  ;   Dime  Sav- 

283;    Chapman    v.   Cheney,    191    111.  ings    Co.    v.    Watson,    254    111.    419; 

574.  Barrett     v.    Barrett,    255    111.    ;^.'?2. 

:'8  Howe  v.  Hodge,  152  111.  252.  Accord:  Loekridge  r.  Mace,  109  Mo. 

39  Nevitt     V.     Woodburn,     s^tpra ;  162;    also    Johnston's    Estate,    185 

Chapman  v.  Cheney,  supra.  Pa.  179;   Hewitt  v.  Green,  77  N.  J. 

*o  Howe  V.  Hodge,  supra.  Eq.  345,  363. 

'•I  Reid    V.   Voorhees,   216   111.   236 

813 


§  709]  •         FUTURE    INTERESTS  [Ch.    XXVI 

heirs  at  law  will  take  at  once  as  upon  an  intestacy,'*^  (b)  On 
the  other  hand,  if  the  instrument  shows  a  plan  to  prefer  some 
of  the  heirs  to  others  by  giving  the  life  estate  and  the  contingent 
interests  to  particular  heirs  and  excluding  other  heirs  entirely, 
then  the  limitations  which  are  valid  will  stand  in  order  to  carry 
out  such  preference  as  far  as  possible."*^  (c)  In  Eldred  v. 
Meek  •*■*  no  life  estate  preceded  the  contingent  gifts  and  the 
testator  seemed  to  have  a  plan  to  prefer  the  children  of  his 
daughter  to  the  daughter  herself  in  respect  to  the  gift  of  cer- 
tain pieces  of  property  devised  to  the  daughter's  children  if 
thej'  reached  twenty-five.  It  would  seem  that  the  views  acted 
upon  by  the  court ''^  might  well  have  been  applied  in  this  case 
to  sustain  the  specific  gifts  of  real  estate  to  the  children  of  the 
testator's  daughter  which  were  valid,  holding  only  invalid  the 
gift  over  which  was  void  for  remoteness. 

4,  Several  cases  rest  upon  situations  so  special  in  character 
that  they  hardly  warrant  any  generalization  with  respect  to 
what  facts  will  cause  the  valid  limitations  to  fail  along  with 
the  invalid.^" 

§  709.  Gray's  statement  in  his  Rule  against  Perpetuities  ^" 
not  followed:  Gray  states  what  he  considers  to  be  the  proper 
rule  thus:  "If  future  interests  created  by  any  instrument  are 
avoided  by  the  Rule  against  Perpetuities,  the  prior  interests 
become  what  they  would  have  been  had  the  limitation  of  the 
future  estates  been  omitted  from  the  instrument."  He  points 
to  Eldred  v.  Meeh,^^  Lawrence  v.  Smith  ^'*  and  Owsley  v.  Har- 
rison ^^  as  in  opposition  to  this  statement  and  insists  upon  the 
impropriety  of  the  results  therein  reached.  It  must  now  be 
plain  from  the  entire  line  of  cases  on  this  subject  in  this  State 
that  Gray's  view,  as  above  expressed,  has  not  been  followed 
by  our  Supreme  Court.^^  It  is  equally  apparent  that  our  Su- 
preme Court  is  not  really  guided  in  its  conclusion  by  any  actual 

42  Lawrence  v.  Smith,  163  111.  149.  ■•^  §  247. 

43  Quintan    v.    Wickman,    233    111.  *»  183  111.  26. 
39;   Moroney  v.  Haas,  277  111.  467.  49  163  111.  149. 

44  183  111,  26.  ^'>  190  111.  235. 

45  Id.  51  This  may   be   said   in  spite  of 

46  Johnson  v.  Preston,  226  111.  the  fact  that  the  court  has  recently 
447;  Reid  v.  Voorhees,  216  111.  236  quoted  Gray's  statement  with  ap- 
(as  to  the  invalidity  of  the  second  proval  in  Moroney  v.  Haas,  277  111. 
clause).  467,  472. 

814 


Ch.  XX\1J  rile  against  perpetuities  [§710 

consideration  of  whether  the  limitations,  according  to  the  lan- 
guage used,  are  separable  and  independent  or  dependent  and 
part  of  a  single  scheme  -which  must  stand  or  fall  together  as  a 
whole.  What  it  really  does  is  to  obtain  a  result  which  it  regards 
as  manifestly  just  under  all  the  circumstances.  As  a  part  of  the 
inquiry  regarding  what  is  manifest  justice  the  court  undertakes 
to  determine  what  the  testator  would  have  desired  with  re- 
spect to  the  valid  dispositions  if  he  had  known  that  part  of 
his  will  must  fail,  and  were  given  no  time  within  which  to 
make  a  new  one.  In  short,  where  part  of  the  limitations  fail 
for  remoteness,  the  court  exercises  a  discretion  in  determining 
whether  it  is  advisable  that  any  other  part  of  tiie  will  shall 
also  fail.  The  appeal  in  the  present  state  of  the  decisions  must 
be  to  the  discretion  of  the  court. 

Topic  2. 

Effect  on  Subsequent  Limitations  When  Prior  Limitations 
ARE  Void  for  Remoteness. 

§  710.  The  rule  of  Monypenny  v.  Bering- :  '»-  The  English 
cases  have  countenanced  a  rule  "that  a  vested  limitation,  or  a 
limitation  for  life,  to  a  living  person  is  void  if  it  follows  an 
interest  which  is  too  remote."'"  The  principal  English  case 
in  support  of  such  a  rule  is  Monypenny  v.  Bering.  The  same 
rule  has  been  more  loosely  expressed  as  follows:  "Where  a 
devise  is  void  for  remoteness,  all  limitations  ulterior  to  or  ex- 
pectant on  such  remote  devise  are  also  void."  This  rule  has 
been  referred  to  with  approval  by  our  Supreme  Court,  and 
Monypenny  v.  Dering  cited. ■'^^  Gray  strongly  disapproves  of 
the  doctrine,  which  he  says,"'^  "introduces  an  arbitrary  element 
into  the  Rule  against  Perpetuities,  and  defeats  the  intentions 
of  testators  without  any  pretext  of  public  policy,  under  the 
false  pretence  of  supporting  them." 

52  2  De  G.  M.  &  G.  145.  ss  Gray 's   Eule   against   Perpetui- 

53  Gray 's    Eule    against    Perpctui-       ties,  §  257. 
ties,   §§251-257. 

54  Quinlan    v.    Wieknian,    233    III. 
39,  46,  47. 


815 


BOOK  V. 

ILLEGAL  CONDITIONS  AND  RESTRAINTS  ON 
ALIENATION. 

CHAPTER  XXVIl. 

FORFEITURE  AND  RESTRAINTS  OX  ALIENATION. 

J;  711.  Forfeiture  on  alienation  as  distinguished  from  re- 
straints on  alienation:  The  eases  of  forfeiture  on  alienation 
deal  with  tiiose  liniitations  where  it  is  pi'ovided  that  upon  alien- 
ation the  estate  shall  come  to  an  end  oi-  that  a  gift  over  shall 
take  eff'eet.  The  operation  of  the  provision  is  to  deprive  the 
person  holding  the  estate  subject  to  it  and  also  his  alienee.  A 
restraint  on  alienation,  on  the  other  halid,  simply  endeavors 
t6  make  an  attempted  alienation  inoperative,  leaving  the  title 
still  in  the  person  holding  subject  to  the  restraint.  Its  opera- 
tion is  merely  to  deprive  the  alienee. 

TITLE    I. 

forfeiture  on  alienation.^ 

Topic  1. 

Op^  a  Fee  Simtle  ok  an  Absolute  Interest  in  Personalty. 

^  712.  Where  the  fee  simple  or  absolute  interest  is  in  pos- 
session:  Th(>  doctrine  is  recognized  in  this  state  that  a  pro- 
vision of  foi'feiture  upon  the  alienation  of  the  fee  simple,  ov 
an  absolute  interest  in  personalty,  is  in  general  void.-'     In  Dariif 

1  Attitude  of  the  court  in  regard  -  Henderson  v.  Harness,  supra. 
to  the  construction  of  clauses  of  aemhle ;  Davis  v.  Hutchinson,  282 
forfeiture:  Henderson  v.  Harness,  111.  52."?;  Jenne  r.  Jenne,  271  111. 
176  111.  :?02.  In  Newconib  v.  Mas-  .126,  .'5:^7.  In  Voris  r.  Renshaw,  40 
ters,  287  111.  20,  the  question  as  to  111.  425,  the  court  seems  to  have 
whether  a  breach  iiad  occurred  and  assumed  that  the  clause  of  forfei- 
whothor  notice  must  ho  given  were  tiire  of  the  fee  upon  alienation,  ex- 
considered,  cept  by  lease  duriiiii  a  certain  num- 

Kales  Fut.  Iiit  — 52  "17 


§  713]  ILLEGAL    CONDITIONS    AND    RESTRAINTS   [Ch.    XXVII 

V.  Hutchinson"'  the  court  quoted  with  approval  Gray's  state- 
ment that  since  the  invalidity  of  the  provision  for  forfeiture 
on  alienation  depended  upon  public  policy  "the  technical  form 
of  putting:  an  end  to  a  fee  simple  upon  alienation  must  be 
immaterial." 

Littleton  said :  ^  "  But  if  the  condition  be  such,  that  the  feoffee 
,^hall  not  alien  to  such  a  one,  naming  his  name,  or  to  any  of  his 
heirs,  or  of  the  issues  of  such  one,  etc.,  or  the  like,  whicli  condi- 
tions do  not  take  away  all  power  of  alienation  from  tlie  feoffee, 
etc.,  then  such  condition  is  good."  The  inference  from  this  is 
that  if  the  provision  for  forfeiture  was  operative  if  the  one 
taking  the  fee  aliened  to  anyone  except  a  person  named,  or  a 
small  class  of  persons,  it  would  be  void.  It  was  so  held  in  Atl- 
water  v.  AttwaterS*  In  Doe  v.  Pearson^'  and  in  //;  re  Macleay  "'' 
such  a  provision  of  forfeiture  was  sustained.  Our  Supreme 
Court  has  recently  gone  to  an  opposite  extreme  and  denied 
the  statement  of  Littleton  by  holding  void  a  gift  over  if  any 
devisee  aliened  to  a  named  person  or  his  wife.^ 

§  713.  Forfeiture  upon  alienation  of  future  interests :  A 
contingent  remainder  being  inalienable,  a  provision  for  the  for- 
feiture of  the  chance  ever  to  have  it  vest  if  alienation  is  attempted 
while  the  interest  remains  future,  cannot  be  void.-*  Where  the 
remainder  is  vested  in  interest  and  indefeasible  a  provision  for 
forfeiture  upon  alienation  while  the  interest  remains  a  future 
one  has  been  sustained  by  the  English  cases  i"  and  denied  validity 

her  of  years,  was  valid  merely  for  the  remainder  was  indefeasible  when 

Ihe  sake  of  argument,  since  it  went  the    clause    of    forfeiture    was    at- 

on  to  hold  that  it  had  not  been  vio-  tempted  to  be  applied.     Gray,   Ee- 

jatgj.  straints     on     Alienation,     2nd     ed., 

3  282  111.  523,  528.  ^§  51a.     In  re  Goulder,  L.  R.  [1905] 

4  §  361.  2  Ch.  100 ;   Kiallmark  v.  Kiallmark, 

5  18  Beav.  330    (18.53).  26  L.  J.  Ch.  1;   Kearsley  v.  Wood- 

6  6  East,  173  (1805).  cock,  3  Hare,  185.     But  Powell  v. 
7L.  R.  20  Eq.  186    (1875).  Boggis,  35  Beav.  535,  seems  contra. 

8  Jenne  v.  Jenne,  271  111.  526.  The  scope  of  Gazzard  v.  Jobbins,  14 

9  Larges'  Case,  2  Leon.  82  (1588).       N.  S.  W.  R.  Eq.  28  (1893)  is  uncer- 

10  7n  re  Porter  L.  R.  [1892]  3  tain  because  the  court,  after  de- 
Ch.  481.  Here  the  remainder  was  termining  that  the  forfeiture  clause 
subject  to  be  divested  if  the  re-  applied  whether  the  remainderman 
mainderman  died  under  twenty-one,  was  out  of  possession  or  in  posses- 
but  Mr.  Gray  assumes  the  remainder-  sion,  may  have  held  that  it  could  not 
man  had  reached  twenty-one,  so  that  separate  the  clause  of  forfeiture  but 

818 


ClI.    XXVII]  FOUFEITURE    AND    RESTRAINTS    ON    ALIENATION    [§714 

in  Michigan.' 1  The  reason  for  this  difference  in  result  is  that 
the  Michigan  court  emphasized  the  fact  that  a  vested  remainder 
was  alienable  at  law  like  a  fee  in  possession.  Hence  a  provision 
of  forfeiture  on  alienation  was  void.  The  English  judges,  on 
the  other  hand,  may  have  remembered  that  in  equity  an  at- 
tempted alienation  of  a  vested  and  indefeasil)le  remainder  or 
reversion  would  be  set  aside  unless  a  proper  consideration  was 
paid.'-  In  short,  there  was  a  public  policy  against  allowing  the 
unrestricted  alienation  of  such  interests.  Hence,  a  provision  of 
forfeiture  on  attempted  alienation  was  not  so  far  contrary  to 
j)ubli('  policy  as  to  bo  void. 

Topic  2. 

Of  Estates  for  Life  or  for  Years. 

§  714.  Forfeiture  upon  the  alienation  of  a  life  estate : 
Waldo  V.  Cummings,^'^  seems  to  have  assumed  that  a  provision 
in  a  gift  of  a  life  estate,  providing  for  forfeiture  upon  aliena- 
tion, is  valid.  The  gift  in  that  case  was  of  a  legal  life  estate 
in  {x'rsonal  i)roperty  u})on  the  condition  that  the  life  tenant 
should  iiave  no  power  to  sell  or  encumber  the  fund,  and  that 
it  sliould  not  be  subject  to  sale  on  legal  process  or  for  the  life 
tenant's  debts;  and  that  if  this  provision  was  violated  the  sub- 
ject matter  of  the  gift  should  pass  to  the  next  person  in  re- 
maindei'.  In  Ifeuderson  v.  Jlarncss,^-^  however,  the  court  seems 
to  have  intended  to  hold  that  such  a  provision  of  forfeiture, 
attached  to  a  life  estate,  was  invalid.'-^  In  that  case  a  legal 
life  estate  was  created  by  will  in  M.  II.,  with  the  proviso  that 
"he  shall  not  sell  nor  in  any  way  encumber  said  realty  during 
his  lifetime.  *  *  *  In  ease  my  son,  M.  H.,  during  his  life- 
time *  *  *  shall  sell  or  in  any  way  encumber  the  same,  that 
his  life  estate  therein  shall  terminate."  and  the  remainder-men 
may  enter  at  once.     M.  II. 's  interest   was  sold  upon  execution. 

must  regard  it  as  all  bad,  since  it  i^' 45  111.  421. 

would  be  void  so  far  as  it  was  in-  i*  176  111.  302.     See  also  Hunt  v. 

tended    to    operate    after    the    re-  Hawes,  181  111.  343;   Streit  v.  Fay, 

mainder   vested    in   possession.  230  111.   319;    Newcomb   i'.  Masters, 

11  Mandlebaum    r.    McDonell,    29  287  111.  26. 

Mich.   78    (1874).  i^-' Walker  v.  Shepard,  210  111.  100, 

i-^Ante,  §§370  et  seq.  Ill,  112,  semble,  accord. 

819 


§  714]  ILLEGAL    CONDITIONS    AND    RESTRAINTS   [Ch.    XXVII 

He  tiled  a  bill  to  construe  llie  will  and  set  aside  these  sales. 
The  deeree  was  in  his  favor.    Tiiis  was  reversed. 

It  is  hard  to  perceive  how  the  deeree  could  have  been  sus- 
tained, even  assuming  that  the  gift  over  bj^  w-ay  of  forfeiture 
on  alienation,  was  valid.  Under  such  circumstances  the  life 
tenant  would  have  had  no  standing  in  court,  either  to  construe 
the  will  or  to  set  aside  the  sales  as  against  the  creditor,  since 
he  would  have  lost  his  estate  by  the  taking  etfect  of  the  gift 
over.  Our  Supreme  Court,  however,  puts  its  decision  upon  the 
ground  that  there  was  no  distinction  to  be  taken  between  a 
proviso  by  way  of  forfeiture  on  the  alienation  of  the  fee  and 
one  attached  to  a  legal  life  estate.  In  the  former  case,  they  say, 
the  clause  of  forfeiture  is  void  for  repugnanc.y,  and  it  is  just 
as  repugnant  to  the  legal  life  estate  as  to  the  fee  simple.^"  Bui 
observe  where  this  reasoning  takes  one.  Every  right  of  re-entry 
attached  to  a  fee  ought  to  be  void  for  repugnancy.  Every  for- 
feiture of  a  life  estate  ought  to  be  void  for  the  same  reason. 
Every  gift  over  cutting  short  a  fee  simple,  whether  bj-  deed 
or  by  way  of  executory  devise,  must  be  void  for  reijugnancy. 
A  second  thought  must  make  it  plain  that  there  is  nothing  in 
this  reason  of  repugnancy,^"  except  so  far  as  it  contains  the 
suggestion  that  gifts  over  upon  forfeiture  for  alienation,  are 
void  on  grounds  of  public  policy. 

When  the  forfeiture,  which  it  is  provided  shall  occur  upon 
alienation,  is  void,  it  is  not  so  ])ecause  of  any  technical  grounds 
of  repugnancy,  but  because  a  sound  reason  of  public  policy  in 
favor  of  freedom  of  alienation  is  contravened.  The  real  question 
is  whethei-  any  public  policy  forbids  the  carrying  out  of  the 
provision  of  forfeiture  upon  alienation.  It  has  become  settled 
that  the  forfeiture  of  a  fee  upon  alienation  is  void.^^  It  is 
e()ually  well  settled  that  the  provision  for  forfeiture  of  a  term 
for  years,  imposed  at  the  time  the  term  is  created,  is  valid. ^" 
The  reason  foj-  this  latter  result  is  that  there  is  no  public  policy 
against  it,  foi-  it  is  proper-  that  landlords  should  be  able  to  pro- 
tect themselves  from  the  occuj)ancy  of  the  premises  by  others 
than  the  original  tenant.  Exactly  the  same  reason  prevails  in 
the  case  wliere  a  tenancy  for  life  is  created.     No  reason  of  policy 

I'iSame     reasoning     approver]     in  ''^  Ante,  §712. 

Walker  v.  Shepard,  supra.  ^'■>  Post,  §715. 

i~  Ante,  §  447;  post,  §§  72.3,  735. 

820 


Cll.    XXX'IIJ   FOKFKITIIU-;    AM)    HKSTKAINTK    OX    ALIENATION  [§  7 1(J 

forbids  the  reversioner  after  a  life  estate  to  dictate  who  shall 
have  possession.  It  is  e(|ually  proper  that,  in  the  creating  of  a 
life  estate  with  a  remainder,  the  remainder-man  should  be  pro- 
tected in  the  same  way  by  restricting  the  possession  of  the  life 
estate  to  the  original  life  tenant.  The  overwhelming  weight 
cf  authority,  as  well  as  principle,  is,  therefore,  in  accord  with 
the  rule  that  "a  provision  in  the  gift  of  a  life  estate  or  interest 
that  the  estate  or  interest  shall  eeasc  or  shall  go  over  to  a  third 
person  upon  alienation,  voluntary  or  involuntary,  of  the  life 
estate  or  interest,  is  good."-"  Ilcmlersoii  r.  Harness  seems  to 
stand  alone  as  a  decision  contrary  to  such  a  rule.-' 

§  715.  Forfeiture  upon  the  alienation  of  a  term  for  years : 
It  is  a  matter  of  common  practice  to  insert  in  leases  a  covenant 
against  assignment  or  sub-letting  without  the  consent  in  writ- 
ing of  the  landlord,  and  to  make  the  breach  of  such  a  covenant  a 
ground  of  forfeiture.  It  is  hardly  necessary  to  observe  that 
these  are  valid. -- 

Topic  3. 

Of  an  Estate  Taii>  or  the  Statutohy  Estates  in  Peace 

Thereof. 

§  716.    Forfeiture   upon  the   alienation  of  an  estate   tail: 

Suppose  a  limitation,  which  would,  under  the  statute  de  donis, 
produce  an  estate  tail,  is  expressly  made  subject  to  forfeiture 
on  alienation.  Apart  from  our  Statute  on  P'ntails -•«  the  pro- 
vision for  forfeiture  is  void.^^  Applying,  however,  the  statute 
you  must  resolve  the  estate  tail  into  a  life  estate  to  the  donee 
in  tail,  wnth  a  remainder  in  fee  to  his  children. ^•'i  The  ques- 
tion  in  this  state,  therefore,  becomes:     Will    the  provision  for 

2f  Gray's    Restraints    on    Aliena-  That  is  tlic  most  appropriate,  if  not 

tion,  2nd  ed.,   §  78.  the   only   way   of   accomplishing   the 

21  It  should  be  observed  tliat  the  protection  of  the  subject  of  a  devise 

dictum    of    the    court    confines    the  from  creditors. ' '     This  was  repeated 

operation   of   Henderson   v.  Harness  in  Streit  r.  Fay,  2.30  111.  319,  324. 

to  a  case  of  legal  life  estates.     The  22  J  »i<f,  §§  233-239. 

court  says,   (page  309):     *'The  rule  23  Ante,  §402. 

would  be   diflFerent   where   the  legal  24  Gray's    Restraints    on     Aliena- 

title  to  the  property  has  been  vested  tion,  2nd  ed.,  §§  75-77. 

in  a  trustee  for  the  use  of  the  bene-  '-■"  Ante.  §  405. 
ficiary     under     specific     conditions. 


821 


/ 


§  717]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [Ch.    XXVII 

forfeiture  upon  alienation  be  discharged  as  to  both  the  life 
estate  and  the  remainder,  or  will  the  life  estate  and  the  re- 
mainder in  fee  both  be  subject  to  the  restraint,  and  the  provision 
of  forfeiture  on  each  interest  be  dealt  with  separately  ? 

This  question  becomes  important  in  dealing  with  Henderson 
V.  Harness.-^  There  the  limitations  of  real  estate  were  to  A 
for  life  with  a  remainder  to  the  heirs  of  his  body.  A's  life 
estate  was  subject  to  be  forfeited  before  his  death  and  the  re- 
mainder took  effect  if  alienation  by  the  life  tenant  should  occur. 
If  the  Bide  in  Shelley's  Case  could  be  applied,^^  A  would  have 
a  fee  tail  with  a  restraint  on  alienation  going  to  the  whole  estate. 
If,  then,  it  could  be  said  that  the  provision  of  forfeiture,  being 
attached  to  the  fee  tail,  is  wholly  void,  the  life  estate,  into 
which  our  Statute  on  Entails  would  resolve  the  estate  tail,  must 
be  discharged  of  the  restraint.  This  would  be  consistent  with 
the  holding  of  the  court,  that  the  life  estate  was  not  subject 
to  the  provisions  of  forfeiture.  The  difficulty  here,  is  that  our 
statute  turns  the  estate  tail  into  limitations  to  A  for  life  with 
a  remainder  to  the  life  tenant's  children.  It  will,  therefore,  be 
urged  that  one  cannot  say  A  has  ever  had  a  fee  tail  with  a 
restraint  on  alienation.  He  only  has  the  fee  tail  for  the  pur- 
pose of  the  mental  operation  of  applying  the  Statute  on  En- 
tails. He  never  in  fact  has  anything  but  a  life  estate.  This 
reasoning,  however,  would  seem  to  be  met  by  the  doctrine  of 
Spencer  v.  Spruell,^^  that  before  the  Statute  on  Entails  operates, 
the  donee  must  become  actually  seized  of  an  estate  tail.  .While 
so  seized  the  provisions  of  forfeiture  on  alienation  were  void 
and  ceased  to  exist. 

TITLE   11. 

FORFEITURE  ON  FAILURE  TO  ALIENATE— GIFTS  OVER 
ON  INTESTACY. 

Topic  1. 
Where  the  First  Taker  Has  a  Fee  or  Absolute  Interest. 

§  717.    Introductory — Typical  cases  stated  for  consideration : 

The  validity  in  general  of  springing  and  shifting  executory  in- 

26  176  111.  302.  28  196  111.  119;  ante,  §403. 

2- Ante,  §412. 

822 


ClI.    XXVII]  FORFEITURE    AND    RESTRAINTS    ON    ALIENATION  [§  717 

terests  in  loal  and  personal  property,  especially  when  created  by 
will,  is  now  fully  established.-"  It  is  important,  therefore,  to 
classify  and  arrange  cases  where  certain  classes  of  shifting  in- 
terests are  void  because  there  is  in  fact  a  provision  of  forfeiture 
on  alienation  which  is  void  on  grounds  of  public  policy.  Some- 
times these  cases  take  the  form  of  a  gift  over  on  failure  to  alien- 
ate. An  analysis  showing  the  distinctions  which  may  be  taken 
can  best  be  effected  by  presenting  six  typical  cases  for  consider- 
ation, both  on  principle  and  under  the  authorities. 

Case  1:  To  A  absolutely,  but  if  he  does  not  dispose  of  the 
property  by  deed  or  will,  then  to  B.  This  is  the  same  as  if  the 
gift  over  read  "if  A  die  intestate."  The  case  is  not  altered 
in  substance  if  A  be  given  a  power  to  dispose  of  the  property 
by  deed  or  will,  with  a  gift  over  of  what  remains  undisposed 
of  in  that  manner.  The  case  is  the  same  if  the  devise  be  to  A 
absolutelv,  but  if  he  die  without  having  disposed  of  the  prop- 
erty by  conveyance  in  his  lifetime  or  by  will  at  his  death  then 
over  to  B,  for  the  express  power  in  A  to  dispose  by  conveyance 
in  his  lifetime  or  by  will  at  his  death  is  really  immaterial.  A, 
having  the  fee,  has  the  power  to  dispose  by  deed  or  will  and 
the  substance  of  the  condition,  upon  which  the  gift  over  takes 
effect,  is  such  that  upon  a  conveyance  by  deed  or  will  the  gift 
over  could  not  possibly  come  into  possession. 

It  mav  be  difficult  to  tell  whether  there  is  a  gift  over  on  in- 
testacy or  a  gift  over  by  way  of  forfeiture  for  alienation  by 
will.  (Case  2,  infra.)  Thus,  suppose  the  gift  over  be  of  "all 
that  remains"  or  "of  all  that  remains  undisposed  of"  by  the 
first  taker  at  his  death.  The  gift  over  here  is  to  take  effect  if 
the  first  taker  does  not  dispose  of  the  property  in  his  lifetime. 
Is  it,  however,  to  take  effect  if  the  first  taker  does  not  dispose  of 
the  property  by  will?  This  difficulty  was  presented  in  Wilson 
V.  Turner-'^  and  Lamhe  v.  Drayton.-^'  It  has  seemed  to  the 
present  writer  that  such  language  as  "what  remains"  or  "-what 
remains  undisposed  of"  should  properly  refer  to  what  remains 
undisposed  of  by  any  manner  of  conveyance  by  act  of  the  trans- 
feror as  distinguished  from  a  transfer  by  operation  of  law. 
Wilson   r.  Turner  and  Lamhf  r.  Draiitoti  have,  therefore,  been 

2^  Ante,  §§462,  463-467.  "■'182   111.   HO.     See  also  Orr   v. 

30  164  111.  398;  5.5  111.  App.  543.  Yates,  209  111.  222. 

823 


ILLEGAL    COXniTIONS    AND    RESTRAINTS    [Ch.    XXVll 


classed  as  cases  of  gifts  over  on  intestacy.-'-'  There  is  much  to 
support  this  in  the  fact  that  our  Supreme  Court  regarded  them 
as  falling  within  the  i-ulc  of  Wolfer  v.  Hemmer-^'^  where  the 
gift  over  was  clearly  upon  intestacy. 

Case  la:  To  A  absolutely,  but  if  he  die  without  leaving  issue 
and  without  disposing  of  the  property  by  deed  or  will,  to  B. 
The  case  is  the  same  if  the  gift  is  upon  A's  death  intestate  and 
without  leaving  issue ;  or  if  the  limitations  are  to  A  absolutely, 
with  power  to  dispose  of  it  by  deed  or  will,  and  if  A  dies  with- 
out leaving  issue  then  wliat  remains  undisposed  of,  to  B. 

Case  2:  To  A  absolutely,  )mt  if  he  does  not  dispose  of  the 
property  by  deed,  then  to  B.  This  is  the  same  in  etfect  as  a  gift 
over  to  B  if  A  attempts  to  dispose  of  tlie  property  by  will.  The 
case  is  still  the  same  if  A  be  given  a  power  to  dispose  of  the 
property  in  his  lifetime,  with  a  gift  over  of  all  that  remains 
undisposed  of  in  that  manner.^*  The  case  is  still  the  same  if 
there  be  a  gift  over  of  all  that  remains  undisposed  of  by  the 
first  taker  during  his  lifetime,^''^  for  where  the  first  taker  is  given 


32  On  the  other  hand  in  Dalrymple 
V.  Leach,  192  111.  51,  57,  where  the 
gift  over  was  expressed  to  take 
effect  "if  at  my  wife's  death  there 
is  any  property  then  in  her  posses- 
sion and  control,"  there  would  seem 
to  be  much  ground  for  saying  that 
the  gift  over  was  to  take  effect  not 
upon  an  intestacy  but  on  an  at- 
tempted alienation  by  will. 

33  144   111.   554. 

34  This  was  the  form  of  the  gift 
in  Sheets  v.  Wctsel,  39  111.  App. 
600,  but  the  validity  of  the  future 
interest  was  not  there  passed  upon. 

It  should  be  observed  that  the 
more  you  qualify  the  power  con- 
ferred upon  the  first  taker  the  more 
surely  is  the  gift  over,  if  the  first 
taker  does  not  exercise  that  power, 
a  ease  of  forfeiture  upon  aliena- 
tion in  the  manner  not  specified. 
In  this  view  the  following  language 
of  our  Supreme  Court  in  Dalrymple 
V.  Leach,  192  111.  51,  57,  is  very  diffi- 
cult to  support:  "Of  course,  if  the 


power  of  disposition  of  the  first 
taker  is  a  qualified  or  limited  power, 
there  is  not  necessarily  a  repug- 
nancy, and  this  we  think,  will  gen- 
erally explain  any  seeming  conflict 
in  the  authorities." 

35  The  difficult  case  is  where  the 
testator  has  simply  made  a  gift 
over  of  "all  that  remains  at  the 
death  of  the  first  taker"  or  "re- 
mains undisposed  of  at  the  death 
of  the  first  taker,"  without  saying 
explicitly  whether  he  means  undis- 
posed of  by  the  first  taker  dur- 
ing his  life  time,  or  undisposed  of 
in  any  manner,  including  failure 
to  dispose  by  will.  It  would  seem 
as  if,  in  such  a  case,  the  primary 
meaning  of  "undisposed  of"  was 
undisposed  of  in  any  manner, 
which  is  accomplished  by  the  act  of 
tlie  devisee, — i.  e.,  by  conveyance 
in  the  first  taker's  life  time  or 
by  will  at  his  death,  so  that  the 
gift  over  is  really  on  an  intestacy. 
This  is  the  view  taken  by  the  writer 


824 


Cm.    XX\'1  I  J   KORh'KITl'KK    AND    HKSTKAINTS    OX    ALIKNATION  |  ji  7 1 7 

an  absoliUc  iiitcrcsl  llic  express  power  to  alienate  Ijy  deed  is 
surplnsage.  Tlie  absolute  interest  jjives  the  first  taker  jjowcr 
to  eonvey  and  the  substance  of  the  condition — viz:  that  the 
property  is  to  ^o  over  if  be  does  not  dispose  of  it  by  deed — 
makes  it  certain  tluit  tiie  interest  wliieh  he  lias  transferred  can 
never  be  eut  shoj't. 

Case  2a:  To  A  absolutely,  but  if  he  dies  without  leaving  issue 
and  without  disposinp;  of  the  property  by  deed,  then  to  H.  This 
ease,  while  remaining  substantially   the  same,   may   be   worded 


of  the  limitations  over  involved 
in  Wilson  v.  Turner,  164  111.  398, 
where  the  gift  over  was  of  all 
"whieh  at  her  fthe  first  taker's! 
death  shall  remain  undisposed  of, ' ' 
and  Lambe  v.  Drayton,  182  111. 
110,  where  the  gift  over  was  of 
' '  what  is  left  at  my  wife 's  death. ' ' 
These  eases,  then,  find  their  proper 
place  in  connection  with  gifts  over 
on  intestacy,  post,  ^S  720  et  seq. 
On  the  other  hand,  Dalrymple  r. 
Leach,  192  III.  51,  57,  where  the 
gift  over  was  to  take  effect  "if  at 
my  wife 's  death  there  is  any  prop- 
erty then  in  her  possession  or  con- 
trol," may  well  proceed  upon  the 
ground  that  the  gift  over  is  to  take 
effect  as  to  all  the  first  taker  does 
not  disj)Ose  of  by  conveyance  in 
his  life  time,  and  so  was  void  as 
an  attempted  forfeiture  upon  a 
conveyance  by  will.  So,  in  Mills 
V.  Newberry,  112  111.  123,  where 
the  gift  was  to  the  testator's  moth- 
er upon  the  express  condition  that 
she  devise  so  much  "as  shall  re- 
main undisposed  of  or  unspent  at 
the  time  of  her  decease"  to  a  char- 
ity for  women,  the  power  to  devise 
generally  was  clearly  taken  away 
and  the  gift  over,  then,  was  an  at- 
tempt to  impose  a  forfeiture  in 
case  of  an  attempted  devise  in  any 
other  manner. 

It  should  he  noted  that  the  cases 


where  the  question  has  arisen  as 
to  whether  a  power  of  disposition 
in  a  life  tenant  can  be  inferred 
from  the  gift  of  "all  that  remains," 
(ante,  SS  648,  649),  do  not  help 
here.  In  those  cases  the  only  ques- 
tion discussed  was  whether  the  life 
tenant  had  any  power  of  disposi- 
tion by  implication.  If  there  was 
any  power  of  disposal  at  all  it  was 
a  power  in  the  life  tenant  to  alien- 
ate during  his  life,  and  the  ques- 
tion as  to  whether  the  life  tenant 
had  a  power  to  dispose  by  will  was 
not  involved.  In  Henderson  r. 
Blackburn,  104  111.  227,  233,  it  was 
hinted  that  the  life  tenant  could 
not  dispose  of  the  fee  by  will,  but 
the  instrument  in  that  case  creat- 
ing the  power  in  terms  provided 
that  the  life  tenant  might  ' '  dis- 
pose of  so  much  of  the  same  as 
she  may  need  or  wish  to  use  during 
her  life  time."  The  words,  "if 
there  is  anything  left"  must,  then, 
have  meant,  "anything  not  disposed 
of  by  the  life  tenant  in  her  life 
time."  No  powea-,  therefore,  to 
convey  by  will  was  given. 

Observe,  also,  that  the  express 
power  given  to  the  absolute  owner 
may  aid  materially  in  construing 
the  phrase  ' '  what  remains, ' '  at  the 
first  taker 's  death :  Bergan  v.  Oa- 
hill,  55  111.  160;  Henderson  r.  Black- 
burn, 104  111.  227. 


825 


§  718]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [Ch.    XXVII 

in  the  same  different  ways  as  Case  2,  always  adding,  however, 
the  contingency  of  A's  dying  without  leaving  issue. 

Case  3:  To  A  absolutely,  but  if  he  does  not  dispose  of  the 
property  by  will,  then  to  B.  This  is  the  same  in  effect  as  if  the 
gift  over  were  to  B  if  A  did  attempt  to  dispose  of  the  property 
by  deed.  The  case  is  the  same  if  the  first  taker  be  given  ex- 
pressly a  right  to  dispose  of  the  property  by  will  with  a  gift 
over  of  all  that  is  not  so  disposed  of.  Again,  the  case  is  still 
the  same  if  there  is  simply  a  gift  over  of  all  that  remains  un- 
disposed of  by  the  will  of  the  first  taker,  since  the  express  power 
of  alienation  by  will  is  immaterial.  Having  the  absolute  in- 
terest, the  first  taker  may  dispose  of  it  by  will  and  the  condition 
upon  which  the  gift  over  was  to  take  effect  can  then  never  happen. 

Case  3a:  To  A  absolutely,  but  if  he  dies  without  leaving  issue 
and  does  not  dispose  of  the  property  by  will,  then  to  B.  This 
ease  also,  while  remaining  substantially  the  same,  may  be  worded 
in  the  same  different  ways  as  Case  3,  always,  however,  with 
the  addition  of  the  contingency  of  A's  dying  without  leaving 

issue. 

§  718.  Consideration  of  Cases  3  and  3a :  In  Case  3  the 
gift  over  is  upon  a  failure  to  alienate  by  will.  This  is  in  effect 
an  indirect  way  of  providing  a  forfeiture  if  the  first  taker  does 
alienate  by  deed.    The  gift  over  is,  therefore,  void.^^ 

In  Case  3a  it  might  be  argued  that  the  gift  over  on  a  definite 
failure  of  issue  was  valid  taken  by  itself,  but  that  its  presence 
made  the  fee  of  the  first  taker  unmarketable  and  that  the  power 
to  alienate  by  will,  so  to  convey  an  indefeasible  title  even  if 
there  were  a  failure  of  issue,  was  a  practical  extension  of  the 
first  taker's  liberty  of  alienation.  This  practical  liberty  in 
alienation  would,  however,  be  slight  because  it  is  only  a  liberty 
to  convey  at  death.  The  case,  therefore,  presents  strongly 
the  feature  .of  a  provision  of  forfeiture  upon  attempted  aliena- 
tion by  deed  and  the  gift  over  has  accordingly  been  held  void.^^ 
This  result  was  reached  by  our  Supreme  Court  in  Wilson  v. 

36  Holmes  v.   Godson,   8   De  Gex,  without  making  a  will)    before  the 

M.  &  G.  152  (1856).     But  see  Mel-  life    tenant,    was     apparently    sus- 

dahl  V.  Wallace,  270  111.  220,  where  tained.     Compare   ante,   §  713. 
the  gift  over  of  a  remainder  after  37  Oulliver  v.  Vaux,  8  De  G.,  M. 

a   life   estate   if   the   remainderman  &    G.    167,    set    out    very    fully    in 

died    intestate     (probably    meaning  Holmes  v.  Godson,  supra. 

826 


Ch.    XXVII]  FORFEITURE    AND    RESTRAINTS    ON    ALIENATION  [§  719 

Wilson.'-^^     The  deed  in  question  in  that  case,  as  the  court  con- 
strued the  words,  conveyed  a  fee  to  Jolin  Wilson  with  the  fol- 
lowing gift  over:     "It  is  further  provided  that  the  above  land 
is  not  to  be  transferred,  but  if  said  John  Wilson  and  Julia 
Wilson,  his  wife,  should  die  intestate   (with  no  children),   the 
above  described  lands  are  to  be  the  undivided  property  of  my 
three  youngest  sons  [naming  them]."    Upon  the  death  of  John 
Wilson  without  children  and  intestate,  the  court  held  that   his 
fee  descended,  oneJialf  to  his  widow  and  the  other  half  to  his 
collateral  heirs,  subject  to  the  widow's  dower,  and  that  the  gift 
over  was  void.     The  gift  over  was  not,  however,  void  l)ecause 
it  was  a  fee  on  a  fee  by  deed.^"     The  gift  over  was  on  "intes- 
tacy."   This  usually  means  intestate  as  to  the  particular  prop- 
erty, which  is  the  same  as  "without  disposing  of  the  property 
by  deed  inter  vivos  or  by  will  at  the  first  taker's  death."     We 
have,  however,  the  very  peculiar  circumstance  that  John's  fee 
is  made  expressly  inalienable  inter  vivos  in  the  very  sentence 
which   expresses  the   gift  over.     We  are,  therefore,  bound   to 
construe  the  word  "intestate"  with  reference  to  the  fact  that 
the  grantor  has  already  declared  "that  the  above  land  is  not 
to  be  transferred"  inter  vivos  by  the  first  taker.    The  gift  over, 
then,  could  not  be  read  as  taking  effect  if  John  failed  to  alienate 
by  deed  inter  vivos  or  by  will,  because  that  would  necessarily 
give  to  John  the  right  to  defeat  the  gift  over  by  an  attempted 
alienation   inter  vivos,  which   is  directly   contradictory   to  the 
language  used.     In  order,  therefore,  to  reconcile  the  declara- 
tion that  John's  fee  is  to  be  inalienable  inter  vivos  and  that 
there  should  be  a  gift  over  if  he  died  intestate,  we  must  give 
the  word  "intestate"  a  meaning  which  it  is  quite  capable  of 
bearing  without  any  great  dejiarture  from  the  natural  meaning 
of  the  word,— iw^:  the  failure  to  alienate  the  property  in  (jues- 
tion  by  will.     Hence,  the  gift  over  is  in  the  event  that  John 
dies  without  children  and  without  alienating  the  property  by 
will.     This  is  the  same  as  a  gift  over  if  John  dies  without  chil- 
dren and  does  attempt  to  alienate  the  property  by  deed. 

§  719.  Cases  2  and  2a:  Tn  Case  2  the  gift  over  is  upon  the 
failure  of  the  first  taker  to  dispose  of  the  property  by  deed.  This 
is  the  same  as  a  provision  of  forfeiture  if  A  does  dispose  of  the 

••!»<  268  111.  270.  ■'■*'  Ante,  §  462. 

827 


§  720]  ILLEGAL    CONDITIONS    AND    RESTRAINTS   [CH.    XXVII 

property  by  will.  The  gift  over  is  accordingly  void.'*'^  That  is 
the  result  reached  by  our  Supreme  Court  in  Stewart  v.  StewartA'^ 
There  the  gift  over  was  to  take  eifect  if  the  first  taker  did  not 
dispose  of  the  property  inter  vivos,  which  is  the  same  as  a  gift 
over  if  he  did  attempt  to  dispose  of  the  property  by  will. 

In  Case  2a  the  situation  is  practically  quite  different.  A 
gift  over  on  a  definite  failure  of  issue  taken  by  itself  is  valid. 
It  leaves,  however,  the  first  taker  wit)i  an  interest  which  is 
practically  unmarketable  in  his  lifetime  because  of  the  un- 
certainty as  to  whether  he  will  die  without  issue  or  not.  When, 
therefore,  you  add  the  fact  that  the  gift  over  does  not  take 
effect  unless  the  first  taker  also  fails  to  dispose  of  the  fee  by 
deed,  you  have  in  fact  given  to  the  first  taker  a  power  of  dis- 
posal of  his  fee  so  as  to  cut  oft'  the  gift  over.  This  makes  his 
fee  or  absolute  interest  marketable  during  his  life.  Instead 
of  creating  a  provision  of  forfeiture  on  alienation,  an  unmarket- 
able title  has  in  fact  been  made  marketable.  Accordingly,  the 
gift  over  has  been  held  valid  in  Case  2a.^^  °  In  New  York  '♦^ 
and  Massachusetts,^^  however,  where  they  have  failed  to  draw 
any  distinction  between  Case  2a  and  Case  1,  the  gift  over 
has  been  held  void.'*" 

§  720.  Case  1 — Gifts  over  on  intestacy — Result  of  the 
authorities:     In  whatever  form  it  may  appear  the  legal  effect 

40  Shaw   V.   Ford,   7   Ch.   Div.   669  •»■  Jackson  v.   Bull,   10   Johns.   19. 

(1877).  ■i^Ide  V.  Ide,  5  Mass.  500. 

41186  111.60.  45  In     accord     with     Jackson     v. 

42  Doe   V.   Glover,   1    Com.   Bench,  Bull    and    Ide    v.   Ide,    see   the   fol- 

448   (1845).  lowing:  Flinn  v.  Davis,  18  Ala.  132; 

Attorney-General  v.  Hall   (5  July,  Kelley    v.    Meins,    135    Mass.    231; 

1731),    Fitzg.    9,    314,    W.    Kel.    13,  Annin 's  Ex'rs  v.  Vandoren's  Adm'r, 

while  apparently   contra,   went    only  1  McCart.   (14  N.  J.  Eq.)   135  (per- 

on  the  proposition  that  no  gift  over  sonal     property)  ;     Van     Home     v. 

after    an    absolute    interest    in    per-  Campbell,   100   N.   Y.   287;    Riddick 

sonal   property  would  be   permitted,  v.  Cohoon,  4  Rand.   (Va.)   547   (per- 

drawing  a  distinction  between  gifts  sonal  property;   only  ground  of  de- 

of  chattels  real  and  gifts  of  chat-  cision   was  uncertainty  in  the   sub- 

tels   personal.      Since   gifts   over   of  ject-matter   which    would   go  over)  ; 

chattels  personal  are  now  permitted  Melson   v.    Cooper,    4    Leigh    (Va.) 

by  will  and  in  this  country  by  deed  408. 
or  will,  Attorney-General  v.  Hall  has 
no  standing  whatever  as  an  author- 
ity. 

828 


CH.    XXVTlj   FOKFEITUKE    AND    KKSTHAINTS    ON    ALIENATION   [§721 

of  the  j;ift  over  on  intestacy  is  tlic  same.  I>y  the  authority  of 
the  English  cases, ■*'•  hy  the  authority  in  this  country  of  Clian- 
cellor  Kent  •*"  especially,  and  of  many  state  jurisdictions  "*** 
including  Illinois,^"'  the  gift  over  is  absolutely  void.  This  is  the 
rule,  also,  whether  the  gift  he  of  real  "'"  or  j)ersoiial  ""  property. 
§  721.  Excuse  for  reconsidering  the  authorities  upon  prin- 
ciple: The  several  decisions  in  this  state  holding  invalid 
gifts  over  on  intestacy  seem  to  have  proceeded  rather  upon 
authority  than  ui^on  principle,  in  fact  our  Supreme  Court  has 
never  seemed  to  Ihink  il  necessary  to  go  farther  than  to  refer 
fo  the  doctrine  of  "repugnancy."  This  is  somewhat  remark- 
able because,  when  Wolfer  v.  Iltnnnety'-  which  established  the 
invalidity  of  gifts  over  on  intestacy,  was  decided,  Gray's  first 
edition  of  Restraints  on  the  Alieiuition  of  Property  had  been 
in  print  for  three  years.  In  that  l)Ook  the  idea  of  repugnancy 
as  well  as  the  whole  doctrine  that  gifts  over  upon  intestacy  were 
void,  was  disposed  of  as  an  unsound  and  ii-rational  innovation. 
Yet  Wolfer  v.  Henimcr  took  no  notice  of  wMiat  was  there  said. 
F'our  years  after  the  appearaiu-e  of  the  2nd  edition  of  the  same 
work,  containing  ii   fui-tiier  emphasis  upon  the  authoi'ities  and 


«5  Gray's    Restraints    on    Aliena- . 
tion,  2nd  ed.,  §§  57-64. 

•"■  Jaekson  v.  Robins,  16  Johns. 
(N.  Y.)  537;  4  Kent  Com.  270. 

■♦s  Gray's  Restraints  on  Aliena- 
tion, 2nd  ed.,   §§  65-74g. 

*!•  Aekless  v.  Seekright,  Breese 
(111.)  76,  semble;  Welsch  v.  Belle- 
ville Savings  Bank,  94  111.  191,  20:'., 
scmblc ;  Hamlin  r.  U.  S.  Express 
Co.,  107  111.  44;;,  448,  semble;  Mills 
r.  Newberry,  112  111.  123,  138; 
Wolfer  V.  Hemnier,  144  111.  5.")  I 
(the  leading  ease)  ;  Wilson  v.  Tur- 
ner, 164  111.  398;  5.1  111.  App.  .H;;, 
semble;  Lambe  v.  Drayton,  182  IH. 

110,  semble;    Saeger    v.    Bode,    ISl 

111.  514,  518;  Dalrymplc  v.  Leach, 
192  111.  51,  57,  semble;  Kron  r. 
Kroh,  195  111.  181;  Metzen  v. 
Schopp,  202  111.  275,  semble;  Orr 
v.  Yates,  209  111.  222,  semble;  Ash- 
bv   V.   MeKinhnk,  271    Til.  254.   259, 


scmblc;  Randolph  v.  Hamilton,  84 
111.  App.  399,  semble;  Whittaker  v. 
(hitheridge,  52  111.  App.  460,  sem- 
ble; Sheets  v.  Wetsel,  39  111.  App. 
600,  semble. 

Observe,  however,  that  in  Mel- 
dahl  V.  Wallace,  270  111.  220,  the 
gift  over  of  a  remainder  if  the  re- 
mainderman died  intestate  before 
the  life  tenant,  was  held  invalid. 
See  ante,  §§  713,  718. 

•"'•>  Aekless  V.  Seekright,  supra; 
Hamlin  v.  U.  S.  Express  Co.,  su- 
pra; Mills  V.  Newberry,  supra; 
Wolfer  r.  Hemmer,  supra;  Lambe 
r.  Drayton,  supra;  Dalrymple  v. 
Leach,   supra;  Orr  r.   Yates,  supra. 

•'■'1  Welsch  r.  Belleville  Savings 
Bank,  supra;  Mills  v.  Newberry, 
supra;  Wilson  r.  Turner,  supra; 
Orr  V.  Yates,  supra. 

-.2  144  111.  554. 


829 


§  722]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [Ch.    XXVII 

reason  agaiiust  holding  gifts  over  on  intestacy  void,  we  find  our 
Supreme  Court  speaking  of  the  rule  of  Wolfer  v.  Ilenimer  as 
if  there  were  no  respectable  authority  for  any  other  position."" •'• 
There  is,  it  is  believed,  a  legitimate  excuse  for  restating  Gray's 
reasoning  in  support  of  the  validity  of  gifts  over  on  intestacy. 

There  is  another  reason  why  the  holding  invalid  of  gifts  over 
on  intestacy  should  be  examined  in  detail  here.  Repugnancy 
on  the  part  of  the  future  interest  to  the  absolute  interest  in 
the  first  taker  was  originally  assigned  as  the  ground  for  the 
rule  that  the  gift  over  was  void.  This  notion  has  been  used 
by  our  Supreme  Court  in  such  a  way  as  momentarily  to  cast 
doubt  upon  the  validity  of  all  shifting  interests  by  deed  or 
will.^^  A  re-examination  on  principle,  then,  of  the  real  nature 
of  the  rule,  will,  it  is  believed,  do  much  to  aid  in  permanently 
removing  this  doubt. 

§  722.  Reasons  for  holding  void  gifts  over  on  intestacy — 
Of  personal  property:  Gifts  over  on  intestacy  of  personal 
property  are,  it  has  been  suggested,  properly  held  void  because 
the  gift  over  is  too  uncertain.''^  While  this  is  not  the  reason 
generally  given  in  the  American  cases,"^*^  and  though  in  this 
state  our  Supreme  Court  has  apparently  gone  far  in  holding 
valid  a  future  interest  in  personal  property  after  a  life  estate 
with  full  power  of  disposition  in  the  life  tenant,"''  yet  in  Mills 

53  In  Burton   v.   Gagnon,   180   111.  ^-i  Ante,   §§445-447,  468-469. 
345,   at  p.    352,   Mr.  Justice    Craig  55 Gray's  Restraints  on  the  Alien- 
said:       "Our    attention    has    been  ation,  2nd  ed.  §58. 
called    to    no    well    considered    case  ^^  Id.  §  65. 

in    which    an    executory    devise   was  ^'  Walker    v.    Pritchard,    121    111. 

held  to   exist,  where  such   power  of  221,  228-230;   Mann  v.  Martin,   172 

alienation    was     conferred     on     the  111.  18.     In  Gaffield  v.  Plumber,  175 

first  taker  as  exists  in  this  case."  HI.  521,  it  could  hardly  be  said  that 

Gray  in  his  Restraints  on  the  Aliena-  the  gift  over  was-  uncertain  because 

tion  of  Property  (§  74)  cites  several  the  principal  was  placed  in  the  hands 

cases  which  hold  the  gift  over  valid.  of   trustees   and   the   cestui  for   life 

If  it  be  urged  that  these  can  hardly  was  obliged  to  petition  the  court  of 

be  called  ' '  well  considered ' '  it  may  chancery  for  leave  to  use  the  prin- 

be  replied  that  Professor  Gray  has  ^  cipal.     In  Welsch  v.  Belleville  Sav- 

furnished  the  well  considered  basis   '  ings  Bank,  94  111.  191,  after  giving 

upon  which  they  rest  and  that  his    ,  his  wife  a  life  estate  in  all  of  the 

opinion    is    quite    as    valuable    and     ,  residue,   the   testator   provided   that 

fully  as  binding  in  this  state  as  that  his   grandchild   Arthur   should   ' '  re- 

of  the  judges  of  the  courts  of  other  ceive  from  the  estate  she  [the  wifel 

jurisdictions.  may  leave  at  her  death  the  sum  of 

830 


Ch.  XX\'T[|  forfeiture  and  restraints  on  alienation  [ |5  723 

V.  Newberry  ^'^  we  have  a  strong  authority  for  resting  the  in- 
validily  oT  tlie  gift  over  on  intestacy  of  pei-soiial  property  •"''•* 
upon  tlie  ground  of  its  uneertainty.''" 

v^  723.  Of  real  estate:  The  groinid  for  tlie  rule  that  gifts 
over  on  intestacy,  of  real  cstale  are  \()i(l  has  been  ])lii-as('d  in 
several  ditil'ereut  ways."^ 

It  was  fii-st  said  that  tlie  condition,  which  prevented  heirs 
or  next  of  kin  of  the  lirst  taker  in  fee  from  inheriting,  was 
repugnant  to  the  estate  in  fee  given  to  the  tirst  taker  and  so 
was  void."'-  Taken  literally  this  reason  was  unworkable  since 
it  would  make  all  shifting  interests  by  deed  or  will  invalid. 
The  idea  evidently  contained  in  this  reasoning  of  repugnancy 
was  later  developed  in  expression,  so  that  it  became  this:  It 
is  a  necessary  incident  to  the  estate  in  fee  that  it  descend  to 
the  owner's  heirs  upon  his  death  intestate,  so  that  the  gift  over 
upon  the  death  of  the  first  taker  intestate  is  in  reality  a  for- 
feiture upon  alienation  by  descent.'''*  In  this  view  the  invalid- 
ity of  gifts  over  on  intestacy  is  merel}'  an  extension  of  the  rule 
that  gifts  over  b}'^  way  of  forfeiture  upon  alienation  in  a  partic- 
ular manner,  viz.,  by  deed  or  will,  ai-e  void.''^ 

The  difficulty  with  this  is  that  it  is  not  every  gift  over  by 
way  of  forfeiture  on  alienation  that  is  invalid.  Those  only 
are  condemned  where  some  principle  of  public  policy  is  violated. 
Thus,  gifts  over  by  way  of  forfeiture  on  alienation  to  a  partic- 
ular person  have  been  sustained.'""'     ('uriously   enough  it  has 


$4,000."  It  was  held  that  even  if 
the  wife  had  a  complete  right  of 
disposal  during  her  life  time,  yet 
Arthur's  interest  was  valid.  In 
Wilson  V.  Turner,  164  111.  398;  there 
was  a  gift  of  personalty  for  life 
with  power  in  the  life  tenant  to  dis- 
pose by  deed  or  will,  and  yet  the 
future  interest  was  held  valid.  See 
also  Randolph  v.  Hamilton,  84  III. 
App.  1599.  In  Bowennan  v.  Sessel, 
191  111.  651,  the  power  was  merely 
to  disj)Ose  by  will  so  there  was  lio 
uncertainty. 

ss  112  111.  123,  citing  Ross  i'. 
Ross,  1  Jac.  &  W.  1;j4. 

cy  Observe  that   in   Mills  v.   New- 


berry, 112  111.  123,  some  real  estate 
was  also  involved. 

••«  See  Dalrymple  v.  Leach,  192 
111.  51,  the  gift  over  of  real  estate 
was  held  void  on  the  ground  of  un- 
certainty which  is  properly  applied 
only  in  cases  of  personalty. 

«i  See  H.  Clay  Horner's  Article, 
Chicago  Legal  News,  June  17,  1905, 
p.  354. 

"^  Gulliver  v.  Vaux,  8  DeG.  M.  & 
G.  167. 

»;:!  Per  Fry,  J.  in  Shaw  v.  Ford, 
7  Ch.  Div.  669. 

<i*  Ante,  U  218,  219. 

'••'Gray's  Restraints  on  Aleina- 
tion,  2nd  ed.  §§  31-44. 

831 


§  72oJ  ll.l-KGAL    CONOITIONS    AND    RESTRAINTS   [Ch.    XXVJI 

never  been  contended  that  any  principle  of  public  policy  was 
violated  by  a  gift  over  on  intestacy.  Quite  the  contrary  in  fact 
appears,  for  it  always  has  been  held  that  upon  a  gift  to  A  for 
life,  with  full  power  of  disposal  by  deed  or  will,  a  remainder, 
in  case  he  does  not  so  alienate,  is  valid.'^''  The  lower  courts 
in  New  York  have  seized  upon  a  section  of  the  New  York  Re- 
vised Statutes,'''  evidently  designed  to  abolish  the  common  law 
rule  by  which  certain  contingent  future  interests  after  a  par- 
ticular estate  of  freehold  were  destructible,  to  justify  a  decision 
that  a  gift  over  on  intestacy  is  valid."*^  In  one  case''-'  at  least, 
so  holding,  the  court,  by  Peckhain,  J.,  speaks  with  contempt 
of  the  rule  which  makes  the  gift  over  on  intestacy  void.  The 
learned  judge  calls  it,  "a  wholly  artificial  and  technical  nde 
founded,  as  1  think,  neither  upon  any  policy  or  sound  rea- 
soning. ' ' 

The  supporters  of  the  rule  which  makes  the  gift  over  on  in- 
testacy void,  are  thus  driven  to  the  assertion  that  the  gift  over 
is  in  reality  by  way  of  forfeiture  on  alienation  by  will,  as  well 
as  by  descent,  because  one  cannot  devise  to  those  who  take  by 
descent."'^  Conceding  this  rule  to  be  applicable,  the  class,  upon 
alienation  to  which  the  forfeiture  occurs,  is  very  small  and  the 
sort  of  alienation  aimed  at  is  very  restricted.  Is  it  possible, 
however,  that  the  technical  rule  that  one  cannot  devise  to  an 
heir  will  prevail  in  such  a  ease  to  support  the  argument  ?  Pro- 
fessor Gray  says:'^  "This  reasoning  would  hardly  find  ac- 
ceptance at  the  present  day."  Why  not?  The  learned  author 
does  not  explain  precisely.  May  it  not  be  this :  The  rule  that 
you  could  not  devise  to  an  heir  rested  upon  the  principle  that 
if  a  conveyance  could  operate  at  common  law  it  must  do  so  rather 
than  under  a  statute.'^-  Thus,  upon  a  feoffment  or  release  to 
A  and  his  heirs  to  the  use  of  A  and  his  heirs,  A  was  in  by  the 

<^>'Posi,    §726,    on    life     interests  1.".7;    Biggerstaff   v.  Van   Pelt,   207 

with    power    of    disposition    or    ap-  111.  611,  618. 

pointment.  "i  Gray's    Eestraints     on    Aliena- 

«7Part  2,  S  1,  Tit.  2,  Art.  1,  par.  tion,  2nd  ed.  §59. 

32    p.  72.5.  ^-  In  Akers  v.  Clark,  184  111.  136, 

fis  Gray's    Eestraints    on     Aliena-  137,    the    same    idea    was   expressed 

tion    2nd  ed.  §§  56g,  70.  when   the   court  gave  as  the  reason 

esGreyston  v.  Clark,  41  Hun.   (N.  "that  a  title  by  descent  is  regarded 

Y.)   125    130.  as  a  worthier  or  better  title  than  by 

-0  Akers    v.    Clark,    184    111.    136,  devise  or  purchase." 

832 


Clf.    XXVII]   FORFEITURE    AND    RESTRAINTS    OX    ALIENATION  [§  723 

coiiuiiou  Jaw,  i  c,  by  the  feoffment  or  release."''  Hut  if  for  any 
reason  A  could  not  he  in  by  the  common  law  mode  of  convey- 
ance, as  where  there  was  a  grant  for  a  valuable  consideration 
to  A  and  his  heirs  to  the  use  of  A  and  his  heirs,  and  there  was 
no  attornment,  then  he  was  at  once  in  by  the  Statute  of  Uses. 
The  rule  was  that  if  the  conversance  could  not  take  effect  in  the 
mode  intended,  it  took  effect  as  it  might."^  Why  then,  when 
the  transfer  cannot  take  effect  according  to  the  common  law  by 
descent  because  of  the  gift  over,  may  it  not  do  so  in  the  mode 
the  testator  intends — that  is  by  will? 

The  second  phrasing  of  the  reasoning  of  the  rule  that  gifts 
over  on  intestacy  were  void  is  this:  "Tliat  any  executory  de- 
vise defeating  or  abridging  an  estate  in  fee  by  altering  the  course 
of  its  devolution  and  at  no  other  time,  is  bad. ' '  '^^  This  sug- 
gestion is  out  of  the  (juestion  since  it  exactly  applies  to  the  case 
of  a  gift  over  on  the  first  taker's  dj'ing  without  leaving  issue  him 
surviving.  If  literally  carried  out,  it  would,  like  the  reason  of 
repugnancy,  destroy  the  most  common  and  unobjectionable  sort 
of  executory  devises. 

The  reason  given  by  Chancellor  Kent,"^  in  favor  of  holding 
the  gift  over  on  intestacy  void,  Avas  that  the  executor}-  devise 
was  contingent  upon  a  circumstance  which  it  was  in  the  power 
of  the  first  taker  to  prevent  happening.  This  has  been  restated  by 
our  Supreme  Court  in  this  f orra :  "^  "An  executory  devise  is 
indestructible  by  any  act  of  the  owner  of  the  preceding  estate, 
and  if  the  owner  of  a  determinable  fee  conveys  in  fee,  the  de- 
termina])le  quality  of  the  fee  follows  the  transfer."  The  rule 
that  an  executory  devise  was  indestructible  meant  that  the  lii-' 
taker  could  not  by  any  tortious  conveyance  destroy  it  as  the  life 
tenant  could  destroy  a  contingent  remainder.  Such  a  rule  has  no 
possible  connection  with  the  (luestion  whetlier  an  executory  de- 
vise is  void.  Furthermore,  if  it  did  have  any  bearing  upon  the 
validity  of  the  gift  over,  the  inference  would  be,  not  that  the  gift 
over  was  void  but  tliat  the  gift  over  was  valid  and  the  power 
given   to  tli(>  first  taker  to  destroy  it  by  conveying  by  deed  or 

-■^Orme's  Case,  L.  R.  8  C.  P.  281.        (N.    Y.)    537;    4    Kent's    Commen- 
-*Antc,  §§62,  456.  tarics,  270. 

-5  Fry,    J.,    ill    Shaw    v.    For.l,    7  77  Williams     v.     Elliott,     246     III. 

Ch.  Civ.  669.  548,  552. 

T6  Jackson    v.    Robins,    16    Johns. 

Kales  Fut.  Int. — 53  8SS 


§  724]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [Ch.    XXVII 

will  would  be  void.  Yet  our  Supreme  Court  asserts :^^  "It 
necessarily  follows  that  if  the  first  devisee  has  an  estate  which 
he  can  convey  in  fee  simple  so  as  to  destroy  an  attempted  limi- 
tation over,  such  limitation  is  void!" 

What  then,  is  the  status  of  the  rule  that  gifts  over  on  intestacy 
are  void?  The  rule  is  founded  on  no  sound  reasoning.  It  does 
not,  like  the  Rule  against  Perpetuities,  carry  out  any  sound 
principle  of  public  policy.  It  is,  like  the  rule  in  Shelley's  case,''' 
a  technical  and  arbitrary  frustration  of  that  thing  so  sacred 
to  modern  courts,  the  direct  expressed  intention  of  the  testator. 
The  rule  in  Shelley 's  case  has  at  least  the  merit  of  being  founded 
upon  very  ancient  authority,  and  of  having  been  originally  de- 
signed to  prevent  the  total  defeat  of  the  settlor's  intent.^^  But 
what  shall  be  said  of  a  comparatively  modern  rule,  purely  tech- 
nical and  arbitrary,  not  founded  upon  any  rule  of  policy,  and 
thwarting  the  intention  of  the  testator?  It  is  not  even  what 
Professor  Gray  calls  it  **^ — "a  reversion  to  a  primitive  type." 

§  724.  Case  la— Gifts  over  on  intestacy  and  failure  of  issue 
— On  principle  the  gift  over  should  be  held  valid  even  though 
the  gift  over  on  intestacy  alone  be  held  void:  The  only  reason 
for  holding  the  gift  over  in  Case  la  void  is  because  gifts  over 
on  intestacy  are  void  and  no  sound  distinction  can  be  drawn 
between  a  gift  over  on  intestacy  alone  and  a  gift  over  on  failure 
of  issue  and  intestacy. 

A  distinction,  however,  can  be  made  between  the  cases  on  two 
grounds :  First,  the  gift  over  if  the  first  taker  dies  without  leav- 
ing issue  standing  by  itself  is  valid.  The  gift  over,  however, 
makes  the  first  taker's  interest  practically  unmarketable.  The 
actual  effect,  then,  of  the  added  contingency  of  intestacy  is  that 
the  first  taker  has  added  to  his  fee  the  power  to  appoint  by  deed 
or  will  a  merchantable  title  to  anyone  he  may  choose.  Hence, 
the  gift  over  on  the  contingency  of  intestacy  is  greatly  in  favor 
of  alienation  and  not  in  substance  a  gift  over  by  way  of  for- 

76 Id.  Shelley's  case  as  defeating  the  tes- 

Ts  Ante,    §§412    et   seq.      Observe  tator 's  or  settlor 's  intention. 

that    in    Welseh    v.    Belleville    Sav-  so  Ante,  §§  34,  35. 

ings  Bank,  94  111.  191  at  199,  Mr.  si  Gray's    Restraints    on    Aliena- 

Justice    Mulkey    describes    at    some  tion,  2nd  ed.  §  74b. 

length  the  character  of  the  Rule  in 

834 


Ch.    XXVII]  FORFEITURE    AND    RESTRAINTS    OX    ALIENATION  [§  725 

i'eiture  on  alienation.^-  11'  this  reasoning  is  sufficient  to  save 
the  gift  ovei'  in  Case  2a,'*-'  it  is  cvon  more  effective  to  do  so  in 
Case  la.  Second,  in  Case  1  there  is  a  certain  forfeiture  of  the 
first  taker's  interest  if  he  attempts  to  permit  the  property  to 
descend  and  this  forfeiture  he  can  only  ])revent  liy  alienation 
by  deed  or  will.  In  Case  la,  however,  the  forfeiture  on  aliena- 
tion b}'  descent  is  still  further  cut  down  because  the  added  con- 
dition of  the  first  taker  dying  without  leaving  issue  is  also  pres- 
ent. If  no  priJK'iple  of  public  policy  is  offended  by  the  gift  over 
in  Case  1,  how  much  less  is  it  offended  in  Case  la? 

§725.  State  of  the  authorities:  In  Friedman  v.  Steiner^* 
a  testator  devised  to  his  wife  absolutely,  but  in  case  after  his 
decease  she  "shall  die  intestate  and  without  leaving  her  sur- 
viving lawful  issue"  then  over  to  Friedman  and  others.  Upon 
partition  pi-oc(>edings  by  a  co-owner  of  the  testator  the  decree 
found  that  the  wife  had  an  estate  in  fee  simple,  with  no  limita- 
tion upon  her  right  to  sell  and  convey  the  fee,  and  that  the  gift 
over  would  operate  upon  whatever  property  remained  in  her  at 
the  time  of  her  death.  The  executory  devisee  appealed  and  the 
decree,  so  far  as  it  found  that  the  widow  had  full  right  to  alien- 
ate in  her  lifetime  by  deed  or  by  will  at  her  death,  was  held 
valid.  So  far,  however,  as  the  decree  found  that  the  widow  had 
a  fee  simple  it  was  reversed,  because  it  should  have  found  that 
the  widow  had  a  fee  simple  determinable.'*-'''  This  was  equivalent 
to  holding  the  gift  over  valid,  since  the  fee  was  determinable 
only  upon  the  happening  of  the  contingencies  upon  Avhich  the 
gift  over  took  effect. 

In  Burton  v.  Gagnon,^^  we  find,  after  an  absolute  gift  to  chil- 
dren, a  gift  over  in  case  "all  of  my  children  die  intestate  and 
without  lawful  issue  and  not  survive  my  wife."  Upon  a  bill 
filed  to  have  the  executorA^  devise  over  declared  void,  a  decree 
was  entered  for  the  complainants.  This  was  affirmed  on  two 
grounds :  first,  that  the  executory  devisees  were  by  a  former  de- 
cree estopped  from  claiming;  second,  that  the  executory  devise 
was  void  on  flie  doctrine  of  Wolfer  v.  Ilemmer  because  it  was 
a  gift  over  on  intestacy.^"     Friedman  v.  Steiner  was  not  men- 

82  See  Andrews  v.  Boye,  12  Eich.           86  See  ante,  §301. 

(S.  C.)   536.  '                                 86  180   111.   345. 

ssjnff,  §719.  87  A    third    possible    ground     for 

s*  107  111.  125.  holding  the  gift  over  void  was  that 

835 


§  725]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [Ch.    XXVU 

tioned.  This  was  the  opinion  of  only  three  judges  out  of  seven. 
Three  judges  dissented  not  giving  any  opinion.  Mr.  Justice 
Wilkin  concurred  in  the  result  only  and  dissented  from  the  rea- 
soning of  the  court  in  some  particulars.^^ 

In  Kocffler  v.  Koeffier,^^  decided  less  than  a  year  after  Burton 
V.  Gagnon,  the  gift  over  was  sustained  upon  the  authority  of 
Friedman  v.  Steiner.  The  testator,  in  the  Koeffier  case,  gave 
to  his  natural  son,  Gustav,  absolutely,  ,and  i)rovided  that  "should 
my  son  die  later, — that  is  after  his  twenty-fifth  year  of  age, — 
without  issue  him  surviving, ' '  then  over  to  the  testator 's  brother 
Carl.  "But  it  shall  not  be  possible,"  the  will  continued,  "in 
any  manner  to  hinder  my  son  Gustav  in  the  free  disposition  of 
his  estate  after  his  twenty-fifth  year  of  age."  Gustav  filed  a 
bill  to  obtain  a  construction  of  the  will  and  it  was  decreed  that 
he  had  a  fee  simple  determinable  ^°  upon  his  death  without  issue 
him  surviving,  with  full  power  and  authority  to  convey  a  good 
indefeasible  title  in  fee  simple.  It  was  urged  in  the  Supreme 
Court,  on  the  part  of  Gustav,  that  he  had  a  fee  simple  absolute 
and  that  the  gift  over  was  void.  The  decree  below  that  Gustav 
had  only  a  fee  simple  determinable  was,  however,  affirmed.  The 
court  w^as  unanimous  and  went  so  far  as  to  say  that  "the  rule 

it  was  upon  an  indefinite  failure  of  v.  Yates,  209  111.  222  (see  infra), 
issue.  Ante,  §  542.  Mr.  Justice  Wilkin  gave  the  opinion 
88  It  is  difficult  to  determine  what  of  the  court,  indicating  clearly  at 
portion  of  the  reasoning  he  dis-  the  same  time  his  own  position, 
sented  from.  The  report  states  that  On  the  whole  Burtoii  v.  Gagnon 
he  does  not  concur  in  the  construe-  had  rather  a  peculiar  history  in  the 
tion  of  the  will  taken  by  the  opin-  supreme  court:  "On  the  first  hear- 
ion.  The  only  serious  question  of  ing  of  the  case  the  court  reversed 
construction  discussed  by  the  opin-  the  lower  court,  in  an  unpublished 
ion  of  the  court  was  whether  the  opinion  by  Cartwright,  J.  [now  pub- 
executory  devisees  took  a  vested  in-  lished  in  Chicago  Legal  News  for 
terest  so  as  to  be  barred  by  a  prior  June  24th,  1905.]  A  petition  for  a 
decree,  and  this  it  resolved  in  favor  rehearing  was  filed  and  was  denied, 
of  a  vested  interest  in  the  executory  Subsequently  the  court,  of  its  own 
devisees.  Ante,  §§  .364,  482.  If  motion,  set  aside  the  order  denying 
Mr.  Justice  Wilkin  dissented  as  to  the  rehearing,  allowed  the  rehearing 
that  then  he  may  have  believed  the  and  affirmed  the  lower  court. ' '  H. 
case  right  upon  the  ground  that  the  Clay  Horner  in  Chicago  Legal  News, 
executory  devisees  were  bound  June  24,  1905,  p.  362  et  scq. 
though  they  had  no  vested  interest  so  185  111.  261. 
or  because  the  gift  over  was  void  ^'^  Ante,  §  301. 
as  a  gift  over  on    intestacy.     In  Orr 

836 


Ch.    XXVII]  FORFEITURE   AND    RESTRAINTS    ON    AUENATKJN  [§  725 

of  interpretation  in  the  case  of  Friedman  v.  Steiner" — tliat  in  a 
will  like  the  one  involved  the  first  gift  was  only  a  tVe  simple 
determinable — had  "become  a  rule  of  property  in  this  state." 
Burton  r.  (hignon  was  unnoticed. 

In  Orr  v.  Yates  ''^  our  Sui)rome  (Jourt  seems  to  have  settled 
it  that  the  gift  over  is  valid  in  this  class  of  cases.  As  the  court 
construed  the  limitations  involved  they  were  as  follows:  To 
the  testator's  wife  for  life  with  a  vestetl  remainder  in  fee  to  his 
daughter,  subject,  however,  to  be  divested  in  favor  of  executory 
devisees  over  if  the  daughter  died  befoi-e  the  wife  and  left  no 
i.ssue  surviving  the  wife  and  "should  not  have  dispo.sed  of  the 
property."  The  contingency  embodied  in  this  last  clause  is 
dying  intestate.  On  a  bill  to  construe  the  will  it  was  decreed 
that  the  gift  over  was  void.  This  was  reversed.  The  court  ob- 
served that,  to  hold  the  gift  over  void,  would  be  to  defeat  the 
intent  of  the  testator — a  result  which  the  court  industriously 
sought  to  avoid.  Then  it  relied  upon  Frkdman  v.  Steiner  and 
Koeffler  v.  Koefflcr,  and  remarked,  regarding  Burton  v.  Gngnon, 
that  "the  construction  of  the  will  under  consideration  [there] 
was  not  concurred  in  hj  a  majority  of  the  court." 

There  is,  hardly  anj^  ground  for  distinguishing  these  cases  upon 
the  language  of  the  several  wills.  The  wording  in  Friedman  v. 
Steiner  and  Burton  v.  Gagnon  is  practically  the  same.  In 
Koeffler  v.  Koeffler  and  Orr  v.  Yates  the  language  used  makes  a 
case,  in  legal  effect,  identical  with  the  other  two. 

In  Williams  v.  Elliott  ^^  a  remainder  after  a  life  estate  was 
devised  to  a  niece  Phoebe,  and  to  the  testator's  three  daughters 
and  "their  heirs  and  assigns  forever.  But  in  case  the  said 
Phoebe  shall  not  dispose  of  the  said  estate  devised  to  her,  by 
will  or  otherwise  before  her  death,  and  should  die  without  issue, 
seized  of  said  estate,"  then  over  to  the  three  daughters  in  fee. 
Phoebe  died  intestate  and  without  issue  and  her  heirs-at-law 
claimed  her  interest  as  against  the  devisees  over.  It  was  held 
that  Phoebe's  heirs-at-law  were  entitled;  that  the  gift  over  was 
void.  The  court  made  the  distinction  that  in  Friedman  v.  Steiner 
the  fir.st  taker  "was  clothed  with  unlimited  power  of  alienation 
in  fee  simple,  and  b}'  necessary  implication  from  the  language 
of  the  will  had  a  power  other  than  that  incident  to  the  owner- 
ship of  a  base  oi-  determiiiabh*  fee."     The  first  taker's  "power 

ni  209    III.   22L\  o-  246  111.  548. 

837 


§  725]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [Ch.    XXVII 

to  convey  in  fee  simple  was  not  regarded  as  an  incident  of  her 
owncrsliip,  bnt  was  a  power  distinct  from  the  right  of  property.'" 
On  the  other  hand,  in  Williams  v.  Elliott  the  court  regarded  the 
power  of  the  first  taker  to  convey  in  fee  as  arising  solely  from 
the  fact  that  the  first  taker  had  a  fee;  that  this  power  was  an 
unlimited  one  and  that  the  gift  over,  therefore,  was  upon  the 
exercise  of  an  unlimited  power  of  alienation  in  the  first  taker 
"as  owner  of  the  estate"  and,  therefore,  void.  The  court  said: 
There  has  been  no  case  "in  which  such  a  devise  has  been  sus- 
tained if  there  was  an  absolute  power  of  alienation  in  fee  simple 
by  the  first  devisee  at  his  own  discretion  and  as  owner  of  the 
estate." 

In  Forbes  v.  Fortes  ^^  there  was  a  devise  to  Cordelia  in  fee 
with  a  gift  over  in  case  she  died  without  issue  surviving  her. 
Then  follow^ed  a  clause  providing  that  nothing  herein  contained 
shall  be  taken  or  construed  as  depriving  Cordelia  "of  the  right 
and  power  to  sell  and  convey  the  lands  devised  *  *  *  in 
fee  simple."  Cordelia  died  intestate  without  ever  having  had 
issue.  It  was  held  that  the  gift  over  took  effect.  The  reason 
appears  to  have  been  that  Cordelia  took  a  fee  subject  to  be  ter- 
minated by  a  gift  over  on  death  without  issue,  which,  standing 
alone  was  valid;  that  the  language  above  quoted  gave  her  a 
power  to  convey  the  fee  independent  of  her  fee  and  appendant 
to  it,  and  that  the  gift  over  which  was  merely  in  default  of 
the  exercise  of  a  power  appendant  was  valid.  The  court  said : 
"The  provision  that  nothing  contained  in  the  will  should  de- 
prive her  of  the  right  and  power  to  sell  and  convey  the  lands 
devised  to  her,  or  any  part  thereof,  in  fee  simple,  was  intended 
by  the  testator  to  confer  a  power  over  the  estate,  and  the  power 
not  being  exercised,  the  limitation  over  took  effect  upon  her 
death  without  surviving  issue." 

The  decisions  above  analj^zed  have  placed  the  court  in  this 
position : 

1.  If  the  gift  over  on  failure  of  issue  is  vSuch  as  to  cause  the 
first  taker  to  have  a  fee  subject  to  be  defeated  by  a  valid  gift 
over — often  called  by  our  court  a  base  or  determinable  fee  in 
the  first  taker — with  a  superadded  power  of  alienation  which  is 
appendant  to  the  fee  but  independent  of  it  and  does  not  arise 

93  261  111.  424,  427,  432. 

838 


Ch.    XXVII]  POKFEITURE   AND   RESTRAINTS    ON    ALIENATION  [§  726 

as  an  incident  of  the  ownership  of  the  fee  in  llie  first  lalccr,  liie 
gift  over  on  failure  to  exercise  the  power  is  valid. 

2.  But  if  the  first  taker  have  a  fee  with  an  unlimited  power 
of  alienation  which  arises  only  from  the  fact  that  the  first  taker 
has  a  fee  and  is  purely  an  incident  of  the  ownership  of  the  fee, 
then  the  gift  over  on  failure  to  exercise  this  incidental  power 
of  alienation,  even  though  it  be  also  coupled  with  a  definite 
failure  of  issue  in  the  first  taker,  is  void. 

This  distinction  is,  it  is  believed,  sui  generis.  Whether  it 
will  persist,  to  confound  judges  and  lawyers  and  cast  spells  of 
pseudo  feudal  mystery  over  a  subject  which  ought  to  be  handled 
on  principles  which  determine  rationally  when  a  gift  over  vio- 
lates some  modern  rule  of  public  policy,  only  the  future  can 
determine. 

Topic  2. 

Where  tpie  First  Taker  Has  Only  a  Life  Estate. 

§  726.  Gifts  in  default  of  the  exercise  of  a  life  tenant 's  power 
of  disposition  or  appointment  are  valid:  If  the  first  taker  is 
given  only  a  life  estate  with  power  to  dispose  of  the  entire  in- 
terest by  will  alone,  or  by  deed  alone,  or  by  deed  or  will,  the 
testator's  intent  may  be  fully  carried  out — that  is,  the  gift  after 
the  life  estate  is  valid. ^*     Our  Supreme  Court  has  never  ap- 

94  Kirkpatrick  v.  Kirkpatrick,  197  erty)  ;  Skinner  v.  McDowell,  169  111. 
111.  144  (real  estate) ;  Ducker  v.  365  (real  estate) ;  Hamlin  v.  U.  S. 
Burnham,  146  111.  9,  semble  (real  Express  Co.,  107  111.  443  (real  es- 
estate) ;  Walker  v.  Pritchard,  121  tate) ;  Bergan  v.  Cahill,  55  111.  160 
111.  221  (real  and  personal  estate)  ;  (real  estate)  ;  In  re  Estate  of  Cash- 
Henderson  V.  Blackburn,  104  111.  man,  134  111.  88,  semhle  (personal 
227  (real  estate) ;  Whittaker  v.  property) ;  Welsch  v.  Belleville  Sav- 
Gutheridge,  52  111.  App.  460,  466;  ings  Bank,  94  111.  191  (personal 
Bowerman  v.  Sessel,  191  111.  651  property)  ;  Metzen  v.  Schopp,  202 
(real  and  personal  estate)  ;  Healy  111.  275,  semhle;  Randolph  v.  Haniil- 
V.  Eastlake,  152  111.  424  (real  es-  ton,  84  111.  App.  399  (personal  prop- 
tate)  ;  Wilson  v.  Turner,  164  111.  erty)  ;  Kaufman  v.  Breckinridge, 
398;  55  111.  App.  543  (real  and  per-  117  111.  305;  Griffin  v.  Griffin,  141 
sonal  estate);  Griffiths  v.  Griffiths,  111.  373;  Dickinson  v.  Griggsville 
198  111.  632  (real  estate) ;  Lambe  u.  Nat.  Bk.,  209  111.  350;  Craw  r. 
Drayton,  182  111.  110,  117-118,  sem-  Craw,  210  111.  246;  Saeger  v.  Bode, 
hie  (real  estate);  Mann  v.  Martin,  181  111.  514,  518;  Cooper  v.  Cooper, 
172  111.  18   (real  and  personal  prop-  76  111.  57,  62;   Burke  v.  Burko,  259 

839 


§  727]  ILLEGAL    CONDITIONS    AND    RESTRAINTS   [Ch.    XXVII 

parently  considered  it  of  any  consequence  in  the  determination 
of  the  validity  of  the  gift  after  the  life  interest,  whether  the 
property  involved  were  real  or  personal  property,  or  whether  the 
life  tenant  had  only  a  power  to  dispose  by  will  alone,  or  by  deed 
alone,  or  by  both  deed  or  will.  It  is  a  diffieult  matter,  there- 
fore, to  say  finally  what  the  extent  of  the  power  given  to  the 
life  tenant  may  have  been  in  the  cases  where  the  validity  of  the 
gift  over  has  been  sustained.^^  The  distinction  taken  between 
the  validity  of  interests  preceded  by  an  absolute  title  and  tak- 
ing effect  upon  a  failure  to  alienate  in  a  particular  manner, 
and  those  preceded  by  a  life  estate  with  power  of  disposition 
in  the  life  tenant,  has  given  rise  to  much  contention  as  to  when 
the  first  taker  has  an  absolute  interest  and  when  only  a  life 
estate.'*''' 

TITLE  III. 

RESTRAINTS  07  ON  THE  ALIENATION  OF  A  FEE  SIMPLE  OR 
ABSOLUTE    INTEREST    IN    PERSONALTY. 

§  727.    Restraints  on  the  alienation  of  a  legal  estate  in  fee 
or  an  absolute  interest  in  personal  property:      These   seem 

111.  262;  Bradley  v.  Jenkins,  276  power  were  one  to  dispose  by  will 
111.  161;  Ellis  V.  Flannigan,  279  III.  only:  Bowerman  v.  Sesscl,  191  111. 
93.  651;  Healy  v.  Eastlake,  152  111.  424; 
»5  (a)  In  the  following  eases  it  ,  Wilson  v.  Turner,  164  111.  398;  55 
seems  that  the  power  was  to  dispose  111.  App.  543.  For  other  questions 
of  by  deed  or  will:  Hamlin  v.  V.  S.  of  construction  arising  in  connec- 
Express  Co.,  107  111.  443 ;  Skinner  v.  tion  with  the  power  in  the  life  ten- 
McDowell,  169  111.  365;  Burke  v.  ant  see  ante,  §§  648,  649. 
Burke,  259  111.  262;  Bradley  v.  96  See  ante,  §168.  The  follow- 
Jenkins,  276  111.  161;  Ellis  v.  Flan-  ing  are  some  of  the  cases  of  this 
nigan,  279  111.  93;  Wilson  v.  Turner,  sort:  Bowerman  v.  Sessel,  191  111. 
164  111.  398;  55  111.  App.  543.  651;  Lambe  v.  Drayton,  182  111. 
(b)  In  the  following  cases  it  110;  Wilson  v.  Turner,  164  111.  398; 
seemed  quite  plain  that  the  power  55  111.  App.  543;  Healy  v.  Eastlake, 
was  limited  to  disposition  by  con-  152  111.  424;  Walker  v.  Pritehard, 
veyanee  in  the  life  time  of  the  life  121  111.  22;  Hamlin  v.  U.  S.  Ex- 
tenant:  Kirkpatrick  v.  Kirkpatrick,  press  Co.,  107  111.  443;  Bergan  v. 
197  111.  144;  Ducker  v.  Burnham,  Cahill,  55  111.  160. 
146  111.  9;  Walker  r.  Pritehard,  121  97  On  the  attitude  of  the  court 
111.  221;  Henderson  v.  Blackburn,  toward  construction  of  clauses  im- 
104  111.  227;  Whittaker  v.  Guthcr-  posing  such  restraints,  see  Postal 
idge,  52  111.  App.  460,  466.  (c)  In  Tel.  Co.  v.  Western  U.  Tel.  Co.,  155 
the  following  cases  it  looks  as  if  the  111.  335. 

840 


ClI.    XXVIl]  FORFEITURE   AND    RESTRAINTS    ON    ALIENATION  [§  728 

definitely  to  have  been  held  void  in  this  state.^**  In  Askius  v. 
Merritt  •''■'  it  was  held  that  a  restraint  upon  the  alienation  of  a 
fee  simple,  limited  in  time  till  a  certain  child  attains,  or  would 
have  attained,  the  age  of  thirty,  was  invalid.' 

In  Dee  v.  Dee-  it  was  held  that  a  pi-ovision  proliibiiiiiK  a 
partition  of  a  vested  and  indefeasible  remainder  prior  to  the 
time  of  vesting  in  possession  was  enforceable.  This  would  ap- 
pear from  the  opinion  of  the  court  to  be  an  application  of  a 
broader  rule  which  permits  agreements  and  provisions  against 
partition  of  absolute  and  indefeasible  interests  in  possession.-' 
The  latter  would  appear  to  be  a  very  substantial  restraint  on 
alienation  of  a  legal  fee.  Tt  is  not  clear  that  this  aspect  of  the 
matter  has  been  considered. 

§  728.  Where  the  interests  are  equitable  there  are  serious 
difficulties  in  effecting  an  involuntary  alienation,  even  where  no 
express  restraints  on  ahenation  are  imposed:  Whenever  one 
is  the  cestui  of  property  in  the  hands  of  trustees  settled  upon 
hira  by  one  other  than  himself,*  his  creditors  are  in  this  state 


98  Jones  V.  Port  Huron  Engine 
Company,  171  111.  502;  Steib  v. 
Whitehead,  111  111.  247,  251,  semble; 
Henderson  v.  Harness,  176  111.  302, 
semble;  Bowen  v.  John,  201  111.  292, 
296;  Little  v.  Bowman,  276  111.  12o, 
130;  Potter  v.  Couch,  141  U.  S,  296, 
315-318.  In  Muhlke  v.  Tiedemann, 
177  III.  606,  614-615,  Hagemau  v. 
Hageman,  129  III.  164,  and  Car- 
penter V.  Van  Olinder,  127  111.  42, 
the  question  involved  was  whether 
the  devisee  took  a  fee  or  a  life  es- 
tate. It  was  argued  in  the  first  two 
cases  at  least,  that  a  restraint  on 
alienation  by  the  devisee  indicated 
that  he  had  only  a  life  estate.  In 
all  three  cases,  however,  it  was  held 
that  he  took  a  foe  simple.  In  Muhl- 
ke V.  Tiedemann,  there  was  an  ex- 
press dictum  that  the  restraint  on 
alienation  was  void. 

Gallaher  v.  Herbert,  117  111.  160, 
is  not  in  conflict  with  the  principle 
of  the  text.     There  the  grantor  con- 


veyed in  consideration  of  the  pay- 
ment of  $200  a  year  by  the  grantee 
during  the  grantor 's  life,  and  the 
further  consideration  that  the  gran- 
tee should  not  during  the  grantor's 
life  sell  or  convoy  the  premises. 
The  provision  against  the  alienation 
was  given  effect  by  the  court  as 
charging  the  annuity  upon  the  land 
and  not  strictly  as  a  restraint  on 
alienation. 
93  254  111.  92. 

1  Smith  V.  Kenny,  89  111.  App. 
293;  Renaud  v.  Tourangeau,  L.  R.  2 
P.  C.  App.  4,  18;  Gray,  R<>?traint9 
on  Alienation,  §  105,  aaord. 

2  212  111.  338,  354. 

■5  Ingraham  r.  Mariner,  194  111. 
269. 

•♦  It  is  clear,  however,  that  under 
R.  S.,  ch.  22,  sec.  49,  the  creditor 
can  reach  the  fund  by  a  creditor's 
bill  when  the  cestui  has  made  a 
settlement  upon  himself:  ReQua  v. 
Graham,  187  HI.  67. 


841 


§  729]  ILLEGAL    CONDITIONS    AND    RESTR^MNTS   [Ch.    XXVII 

without  remedy.  No  restraint  on  alienation  is  necessary\^  It 
makes  no  ditference  that  the  interest  of  the  cestui  is  absolute  « 
or  for  life,"  or  whetlier  it  is  in  personal  property  ^  or  real  estate.'* 
The  defect  in  our  law  seems  to  arise  from  the  failure  of  the 
legislature  to  make  some  remedies  applicable,  and  by  expressly 
prohibiting  the  use  of  the  usual  remedy  by  a  creditor's  bill. 
Garnishment  of  the  trustee  is  very  likely  not  possible.^^  The 
Statute  on  Executions  ^^  has  no  application  where  the  equitable 
interest  is  in  personalty.  It  has  been  held  not  to  apply  where 
the  equitable  interest  is  in  realty,  and  has  been  created  by  an 
express  trust  with  active  duties  in  the  trustee.^^  Execution  by 
means  of  a  creditor's  bill  is  in  terms  prohibited  by  section  49 
of  the  Chancery  Act.^^  This  is  a  most  extraordinary  state  of 
the  law.  The  cestui  is  free  of  all  express  restraints  on  aliena- 
tion. He  can  alienate  freely  by  his  own  act,  yet  his  creditors 
must  go  unpaid. 

§  729.  By  an  extension  of  the  rule  of  Claflin  v.  Claflin  ^^ 
which  permits  the  creation  of  indestructible  trusts  of  absolute 
and  indefeasible  equitable  interests,  restraints  on  alienation 
during  the  time  the  trust  remains  indestructible  have  also  been 
permitted:  ^''  This  proposition  is  here  merely  noted.  A  dis- 
cussion of  its  propriety  is,  for  convenience'  in  exposition,  post- 

5  Potter  V.  Couch,  141  TJ.  S.  296,  statute  is  copied  from  a  New  York 
318.  act  and  should  receive  the  same  con- 

6  M.  struction  as  had  been  given  to  the 

7  Binns  v.  LaForge,  191  111.  598.  New   York    act   by    the   New   York 

8  Id.  courts  before  our  legislature  adopted 

9  Potter  V.  Couch,  supra.  it:     KeQua  v.   Graham,  187   111.   67, 

10  McKindsey    v.    Armstrong,     10       71. 

Upper    Can.    App.    17;     Gray,    Ee-  iM49  Mass.  19;  posi,  §  732. 

straints     on     Alienation,     2nd     ed.,  is  Wallace     v.    Foxwell,    250    111. 

§§  124q,  114a.  616;    Hopkinson  v.   Swaim,  284   111. 

11 R.    S.   1845,   p.   301,   §5;    Laws  11;    Boston   Safe    Deposit    &    Trust 

1871-2,  p.  505,  §4;   R.  S.  1874,  ch.  Co.  t;.  Collier,  222  Mass.  390.     Ob- 

77    §  4.  serve,  however,  that  the  cestui  whose 

12  Potter  V.  Couch,  supra;  Moll  interest  is  subject  to  specific  re- 
V.  Gardner,  214  111.  248,  252.  But  straints  on  its  involuntary  alienation 
see  Wallace  v.  Monroe,  22  111.  App.  only  cannot  have  a  discharge  until 
602.  he  surrenders  to  the  trustee  in  bank- 

13  E.  S.  1874,  ch.  22,  sec.  49.  ruptcy  his  interest.  Per  Kohlsaat, 
Potter  V.  Couch,  supra;  Binns  J.,  in  In  re  Fleishman,  120  Fed. 
V.  LaForge,  supra;  Gray,  Restraints  960. 

on  Alienation,  2nd  ed.,  §  124r.    This 

842 


Ch.    XXVII]   FORFEITURE   AND   RESTRAINTS   ON    .VL.IENATION  [ §  730 

poned.^''  It  may  be  noted  in  passing  that  a  state  of  tlie  law 
\\hich  declares  a  restraint  on  the  alienation  of  a  legal  estate  in 
fee,  or  absolute  interests  in  personalty,  void  on  grounds  of  pub- 
lic policy,  and  yet  permits  the  same  restraint  when  an  absolute 
and  indefeasible  interest  is  equitable,  challenges  inquiry. 

TITLE  IV. 

EESTRAINTS  ON  THE  ALIENATION  OF  ESTATES  FOR 
LIFE  OR  FOR  YEARS. 

§  730.  Restraints  on  alienation  of  a  life  estate — When  the 
interest  is  legal:  It  has  been  pointed  out  above, '"^  that  this 
jurisdiction  is  unusual  in  holding  that  a  provision  for  the  for- 
feiture on  alienation  of  a  legal  life  estate  was  void.  Strangely 
enough,  probably  the  only  case  in  any  jurisdiction  in  which  a 
legal  life  estate  has  been  held  subject  to  an  absolute  restraint 
on  alienation,  is  to  be  found  in  the  supreme  court  reports  of 
this  state.  Gray  gives  a  full  and  complete  analysis  of  this  case,^*^ 
or  rather  series  of  cases,  because  litigation  involving  the  same 
questions  was  three  times  before  our  Supreme  Court. ^'^  More 
recently  one  of  the  appellate  courts  of  this  state,  in  Emerson 
V.  Marks,-^^  held  the  same  way,  without,  however,  relying  upon 
the  earlier  series  of  cases  in  the  Supreme  Court.  The  appellate 
court  assumed  that  the  restraint  on  alienation  was  valid  where 
the  life  estate  was  equitable,  i.  e.,  it  assumed  the  existence  of 
the  validity  of  spendthrift  trusts, — and  then  w^ent  on  to  say 
that  there  was  no  difference  in  the  case  of  a  restraint  on  aliena- 
tion attached  to  a  legal  life  estate,  and  one  attached  to  an  equi- 
table life  estate. 

10  Post,  §§739-741.  homestead  of  the  deceased,  and  the 

^T  Ante,  §  714.  life  estate  created  was  for  the  bene- 

18  Gray 's  Restraints  on  Aliena-  fit  of  the  deceased 's  widow.  It  is 
tion,  2nd  ed.,  §§  135,  138.  believed  that  the  result  reached  by 

19  Christy  i'.  Pulliam,  17  IlL  59;  our  Supreme  Court  was  an  evidence 
PuUiam  v.  Christy,  19  111.  331;  of  its  willingness,  at  that  time,  to 
Christy  v.  Ogle,  33  111.  295.  The  inaugurate  a  doctrine  that  a  life 
above  cases  arose  shortly  after  the  estate  created  by  will  in  homestead 
enactment  of  the  first  Homestead  property  might  be  made  inalienable 
Exemption    Law     of     1851     (Laws  by  the  life  tenant. 

1851,  page  25).     The  property  sub-  2024    111.    App.    642.      See    also 

ject  to  the  life  estate  had  been  the       Springer  v.  Savage,  143  111.  301. 

843 


§  731]  ILLEGAL    CONDITIONS    AND    RESTR:VINTS    [Ch.    XXVII 

§731.  Where  the  life  interest  is  equitable :  Under  Brandon 
V.  liohinsan,'^  which  settled  the  law  in  England  against  the 
spendthrift  trust  or  restraint  on  alienation  of  an  equitable  life 
estate,  it  was  still  possible  to  protect  a  fund  from  the  creditors 
of  one  who  might  be  enjoying  the  income.  This  was  accom- 
plished by  giving  the  trustees  an  absolute  discretion  to  cease 
paying  anything  to  the  beneficiary  and  to  accumulate  the  in- 
come, or  to  pay  the  income,  in  the  discretion  of  the  trustees, 
among  such  one  or  more  of  several  beneficiaries  as  they  might 
see  fit.22  In  framing  up  a  trust  on  these  lines  it  was  very  im- 
portant to  observe  a  distinction  between  a  discretion  in  the 
trustees  to  apply  anything  at  all,  and  a  discretion  as  to  the 
mode  of  applying.  A  discretion  in  the  latter  respect  only,  will 
not  save  the  cestui's  life  interest  from  his  creditors.-''  The 
distinction  referred  to  was  very  clearly  recognized  in  Ingraham 
V.  Ingraham.^'^ 

Steih  V.  Whitehead,^^  seems,  however,  to  be  a  decision  in 
favor  of  the  spendthrift  trust  doctrine,  which  permits  equitable 
life  estates  to  be  made  inalienable.  As,  however,  that  was  an 
attempt  by  a  creditor  to  garnishee  funds  in  the  hands  of  a  trus- 
tee under  an  express  and  active  trust,  it  might  have  gone  off 
on  the  ground  that  the  money  in  the  hands  of  the  trustee,  was 
not,  under  the  proper  construction  of  the  Garnishment  Act, 
subject  to  that  process.^^ 

In  estimating  the  immunity,  apart  from  any  restraint  on 
alienation,  of  equitable  life  estates  from  actions  by  creditors, 
the  effect  of  111.  R.  S.  1874,  chap.  22,  sec.  49,  must  not  be  over- 
looked.-'    In  the  two  recent  cases  of  Binns  v.  LaForge,-^  and 

21  1  Eose  197.  309;    Bennett    v.    Bennett,    66    111. 

22  Lord  V.  Bunn,  2  Y.  &  C.  C.  C.       App.  28 ;  217  111.  434. 

98.     One  case  at  least  in  this  state  26  McKindsey    v.    Armstrong,    10 

indicates   that   this  form   of   settle-  Upper    Can.    App.    17;    Gray's    Ee- 

ment  is  in  use  in  Illinois;    King  v.  straints     on     Alienation,     2nd     ed., 

King,  168  111.  273.  §  124q,  §  114a,  note  1. 

23  Green  v.  Spicer,  1  Buss.  &  M.  27  Ante,  §  728. 

395;    Younghusband   v.   Gisborne,   1  28  191  m.  598,  at  page  608,  court 

Coll.  400.     But  see  In  re  Coleman,  queries     whether     the     New     York 

39  Ch.  Div.  443.  statutory    rule,    which    exempts    so 

^169  111.  432,  471.  much   income   as   may  be  necessary 

25  111111.247.     See  also  Jones  v.  for    the    cestui's    support,    can    be 

Port  Huron  Co.,  171  111.  502,  507 ;  grafted  on  to  our  statute. 
Henderson  v.  Harness,  176  111.  302, 

844 


Ch.  XXVTT]  forpeituhe  and  restraints  on  alienation  L§  732 

ReQua  v.  Graham;-''  the  operation  of  that  section  is  fully  brouglit 
out.  In  the  former  ease  it  was  clearly  held  that  a  creditor  could 
not  by  a  bill  in  chancery,  reach  the  income  settled  upon  the 
debtor  for  his  life.  In  the  latter  ease  it  was  held  that  if  the 
income  was  settled  by  the  cost  id  upon  himself  the  bill  would  lie. 
Under  this  statute,  therefore,  the  extraordinary  result  is  reached 
that  a  cestui  can  convey  his  interest,  but  his  credi1x)rs  cannot 
get  it.3o 

TITLE   V. 

INDESTRUCTIBLE  TRUSTS  OF  ABSOLUTE  AND 
INDEFEASIBLE  EQUITABLE  INTERESTS. 

Topic  1. 

Taken  by  Themselves  and  Considered  Separately  from  any 

Restraints  on  Alienation,  they  are  Valid  Provided 

they  are  Properly  Limited  in  Time. 

§  732.  The  doctrine  of  Claflin  v.  Claflin,''!— How  far  recog- 
nized in  this  state:  How  far  does  our  Supreme  Court  recog- 
nize the  doctrine  of  Claflin  v.  Claflin,  that  a  proviso  declaring 
that  an  absolute  equitable  owner  shall  not  receive  the  principal 
of  his  gift  from  the  hands  of  the  trustee  until  a  certain  future 
time  beyond  the  period  of  tlie  ccstui's  minority,  is  valid? 

Gray  in  his  Restraints  on  Alienation  has  dealt  with  tlie  case 
of  Rhoads  v.  Rhoads,^'^  as  supporting-  the  rule  of  Claflin  v. 
Claflin.  The  language  of  the  Illinois  court  may  be  open  to  the 
strictures  which  the  learned  author  has  put  upon  it.  It  is  not 
so  clear,  however,  that  the  result  reached  is  not  correct  upon  the 
ground  that  the  children  had  a  certain  executory  interest  after 
fifteen  years — /.  e.,  that  they  took  an  interest  which  was  neither 

29  187  111,  67.  protect  the  property   from  creditors 

30  See  also  Linn  v.  Downing,  216  and  enforced  the  spendthrift  trust 
111.  64,  which  seems  to  deny  the  doctrine  its  decision  could  be  read- 
creditor  any  right  upon  a  new  ily  understood.  On  the  reason  given 
ground,   viz.,   that   where    there   are  it  is  inexplicable. 

several    beneficiaries    to    a    common  -ii  149  Mass.  19;   Young  v.  Snow, 

or    blended    fund,    the    creditor    of  167   Mass.  287;   Danahy  v.  Noonan, 

one  cannot  reach  his  debtor's  share.  176  Mass.  467,  accord. 

If    the    court    had    found,    by    eon-  ^'s  43   111.   239;    Gray's  Restraints 

struction,    an    expressed    intent    to  on  Alienation,  2nd  ed.,  §  124. 

845 


§  732]  ILLEGAL    CONDITIONS    AND    RESTRAINTS   [Cll.    XXVII 

vested  uor  contingent,  but  still  executory.^^  If  so,  the  decision 
that  the  children,  although  the}'  were  of  age,  could  not  compel 
a  division  of  the  estate  before  the  end  of  the  fifteen  years,  must 
be  sound.  In  fact,  the  court  seems  to  assume  the  rule  of  the 
English  cases,  which  are  opposed  to  Claflin  v.  Claflin,  to  be  the 
law, 

Howe  V.  Hodge,^^  Chapman  v.  Cheney,^^  and  Flanner  v.  Fel- 
lou's,^*^  might  be  mentioned  as  tending  to  support  the  rule  of 
Claflin  V.  Claflin.  It  is  clear,  however,  that  the  two  latter  cases 
do  not  in  any  way  involve  the  validity  of  a  postponement  clause 
and  the  result  reached  is  perfectly  consistent  with  the  viev/ 
that  the  postponement  clause  is  void.  Howe  v.  Hodge  is  equally 
indecisive  as  far  as  any  support  of  Claflin  v.  Claflin  is  con- 
cerned. We  may  suppose  the  gift,  in  that  case,  to  be  not  pre- 
ceded by  any  life  estate,-^"  so  that  it  is  a  direct  vested  gift  in 
the  testator's  grandchildren  with  a  postponed  enjoyment  till 
each  grandchild  respectively  reaches  the  age  of  twenty-live.  We 
may  even  assume  that  the  court  was  of  the  opinion  that  the 
class  would  be  allowed  to  increase  until  the  eldest  grandchild 
actually  reached  thirty,  because  the  postponed  enjoyment  clause 
was  valid.  Nevertheless,  the  doctrine  of  Claflin  v.  Claflin  is 
not  supported,  because,  even  where  Claflin  v.  Claflin  is  not  law, 
the  postponed  enjoyment  clause  is  valid  where  its  existence  is 
for  the  benefit  of  other  members  of  a  class.^^  So  where  there 
are  gifts  over  during  the  period  of  the  trusteeship  so  that  the 
equitable  interest  is  not  indefeasible,  there  can  be  no  ground 
for  prematurely  terminating  the  trust. "^'•' 

When  the  author's  Future  Interests  appeared  in  1905,  the 
only  case  in  this  State  actually  supporting  the  holding  of  Claflin 
I.  Claflin  was  Lunt  v.  Lunt."^^  In  that  ease  the  testator  made 
certain  provisions  for  his  children  (two  daughters)  when  they 
or  the  survivor  of  them  arrived  at  the  age  of  thirty  years,  if  his 
wife  still  survived.  Then  he  provided  "and  in  case  my  said 
wife  shall  die  within  thirty  years  from  the  birth  of  my  youngest 

^^  Ante,  §482.  441;   Gray's  Rule  against  Perpetui- 

34  152  111.  252.  '              ties,  2nd  &  3rd,  §  639aa. 

35  191  111.  574.  39  Bennett    v.    Bennett,    217    111. 
30  206  111.  136.  434;   Johnson  v.  Buck,  220  111.  226. 

37  Ante,  §  566.  4o  108  111.  307. 

38  Oppenheim   v.  Henry,  10  Hare, 

846 


Ch.    XXVII]  FORFBHTURE   AND    RESTRAINTS    ON    ALIENATION  [§  732 

child,  tlion  at  tlie  expiration  of  said  tliirty  years  my  whole  prop- 
erty shall  go  to  my  heirs-at-law. "  The  wife  died  before  the 
3'oungest  child  attained  thirty,  and  the  two  daughters,  being 
then  over  twenty-one,  claimed  to  be  entitled  at  once  upon  the 
ground  that  the  said  clause  quoted  was  void  for  remoteness, 
being  executory  after  thirty  years.  The  validity  of  this  con- 
tention the  court  denied  upon  the  ground  that,  at  least,  upon 
the  widow's  death  while  the  youngest  child  was  under  thirty 
(the  event  which  happened),  the  children  took  a  vested  interest 
subject  to  a  postponed  enjoyment  until  the  youngest  reached 
thirty.  That  at  once  raised  the  question  of  whether  the  post- 
poned enjoyment  clause  was  not  void  as  an  improper  restraint 
upon  alienation,  so  that  the  daughters  would  be  at  once  entitled.  • 
This  point  was  not  elaborately  discussed  but  the  court  seems  to 
have  been  perfectly  clear  that  the  intent  of  the  testator  must 
prevail.  ''By  the  plain  terms  of  the  will,"  the  court  said,  "the 
property  *  *  *  would  remain  in  the  hands  of  the  trustees 
until  the  youngest  daughter  arrived  at  the  age  of  thirty."  Ac- 
cordingly, the  daughters  were  denied  any  relief.^  ^ 

Recently  there  have  been  three  cases  '^-  which  have  firmly  es- 
tablished rule  of  Claflin  v.  Claflin  in  this  state. 

In  considering  whether  the  rule  of  Claflin  v.  Claflin  is  law 
in  this  state,  the  attitude  of  our  Supreme  Court  upon  the  validity 
of  spendthrift  trusts  should  not  be  overlooked.  While  it  does 
not   follow  that,   because   a   postponed   enjoyment   attached   to 

•»!  Allen    V.    McFarland,    150    111.  children  who  survived  the  wife,  then 

455,  ought  to  be  read  in  connection  the  court's  position   would  seem   to 

with  Lunt  v.  Lunt.     It  is,  however,  be  in  accord  with  the  rule  of  Claf- 

almost  impossible  to  state  what  view  lin  v.  Claflin.     If  such  gift  over  is 

the  court  took  of  the  limitations  in  properly    derived    from    the    words 

that  case.     They  seem  to  have  re-  "or   as   many   of  them    [testator's 

garded  the  gift  to  the  children   as  children]   as  may  be  living  at  that 

a  present  vested  interest  subject  to  time  [wife's  death],"  then  the  rule 

a     postponed     enjoyment     till     the  of  Claflin  r.  Claflin  is  not  involved, 

wife's  death   and   to  have   actually  for    the    plaintiff    would    have    no 

held  that  the  heirs   of  the  child   of  standing  in  court  and  the  postpone- 

the  testator  dying  after  the  testator,  ment    would    be    valid    even    where 

could  not  maintain  a  bill  to  compel  Claflin  v.  Claflin  is  not  law,  on  ac- 

a  distribution   before   the  death   of  count  of  the  gift  over, 

the  wife.    If  the  court  also  regarded  "2  Wagner  v.  Wagner,  244  111.  101 ; 

the  will  as  containing  no  gift  over  Guerin  r.  Guerin,  270  111.  239,  245; 

of  the  shares  of  children  dying  be-  Sheley  v.  Sheley,  272  111.  95. 
fore  the  death  of  the  wife  to  those 

847 


§  733]  ILLEGAL    CONDITIONS    AND    RESTR^MNTS   [CH.    XXVII 

an  absolute  equitable  interest  is  valid,  spendthrift  trusts  must 
be  recognized,  the  converse  proposition  is  true.  If,  therefore, 
Steih  V.  Whitehead,-^'^  recognizing  the  validity  of  spendthrift 
trusts,  be  regarded  as  law,  it  is  not  surprising  that  the  rule  of 
Clafli'n  v.  Claflin  applied  in  Lunt  v.  Lunt,  should  be  followed. 

§  733.  How  far  sound  on  principle — The  authorities  at 
large :  Should  the  rule  of  Claflin  v.  Claflm  be  simply  tolerated 
as  something  bad  that  exists,  or  should  it  be  supported  as  sound 
on  principle?  If  one  looked  simply  at  the  result  of  the  au- 
thorities, they  would  doubtless  take  the  first  alternative,  for 
the  English  cases  have  long  since  settled  the  law  for  that  juris- 
diction, that  the  postponement  is  void.^^  It  may  be  conceded, 
also,  that  the  great  deference  which  we  pay  to  the  long  settled 
rules  of  the  English  equity  judges  on  questions  of  this  sort  would 
make  the  weight  of  authority  preponderate  against  ClaJUn  v. 
Claflin,  even  though  American  jurisdictions  had  more  frequently 
folloAved  the  Massachusetts  rule  than  that  of  the  English  cases.^^ 

§  734.  Reasoning  of  the  English  cases :  When  we  come 
to  ask  what  are  the  reasons  in  support  of  the  view  that  the 
postponement  is  void,  we  naturally  turn  to  those  given  by  the 
English  equity  judges.  Here  we  find  few  reasons  given.  Saun- 
ders V.  Vautier,^^  which  is  the  foundation  of  the  whole  doctrine 
in  the  English  courts,  gives  no  reason  at  all.  Similarly  a  great 
mass  of  English  cases  decided  since,  follow  the  rule  without 
the  slightest  suggestion  of  the  reasons  upon  which  it  is  based.-*" 

4c  111  111.  247.  ties:     Shallcross 's   Estate,   200    Pa. 

4*  Saunders  v.  Vautier,  4  Beav.  St.  122;  also  one  in  Connecticut: 
115;  1  Cr.  &  Ph.  240  (Lord  Gotten-  Conn.  Trust  &  Safe  Dep.  Co.  v. 
ham,  C);  Weatherall  v.  Thorn-  Hollister,  74  Conn.  228.  Cf.,  how- 
burgh,  8  Ch.  Div.  261  (Court  of  ever,  Gray's  Restraints  on  Aliena- 
Appeal)  ;  Harbin  v.  Masterman  tion,  2nd  &  3rd  ed.,  §§  124c  and 
[1894],  2  Ch.  184,  affirmed  in  the  124d  for  reference  to  some  Pennsyl- 
House  of  Lords,  sub  nom.  Wharton  vania  decisions  looking  the  other 
V.    Masterman    [18951,    A.    C.    186.  way. 

For   other    cases   decided    by   single  Tlie     rule     of     Claflin    v.    Claflin 

equity     judges,     see     Gray's     Re-  seems    to    be    law    in    Kentucky    as 

straints     on     Alienation,     2nd     ed.,  well    as   Illinois:     Smith    v.   Isaacs, 

§§  105-112,  and  also  the  recent  case  78    S.    W.    434     (Ky.) ;     Avery    v. 

of  In  re  Thompson,  44  W.  R.  582.  Avery,  90  Ky.  613,  semble.    For  the 

45  There  is  a  dictum  in   a  recent  Illinois  cases,  see  ante,  §  732. 

Pennsylvania    case    in    accord    with  «4  Bear.  115;  1  Cr,  &  Ph.  240. 

the    long    line    of    English    authori-  i'  Josselyn  v.  Josselyn,  9  Sim.  63 ; 

848 


Cil.    XXVIi]  FORFEITURE   AND    RESTRAINTS    ON    zVLIENATION  [§  7134 

Lord  Ilerslicl  in  Wharton  v.  Mastemiun,^^  said,  .speaking  of 
the  foundation  of  the  rule  of  ISaiuiders  v.  Vautier:  "The  point 
seems  in  the  first  instance  to  have  been  rather  assumed  than 
decided."  In  Curtis  v.  Lukin*^  Lord  Langdale,  ]\I.  R.,  after 
stating  the  grounds  upon  which  he  supposed  Lord  Cottenham's 
decision  in  Saunders  v.  Vautier  rested,  plainly  queried  whether 
the  rule  was  based  on  sufficient  grounds.  So  in  Peard  v.  Keke- 
wich,^^  where  the  postponement  was  actually  held  good,  the 
Master  of  the  Rolls,  Sir  John  Romilly,  plainly  declares  he  sees 
no  reason  against  it.  In  the  few  cases  where  reasons  have  been 
given  for  the  rule,  they  are  of  a  somewhat  varied  and  uncei-- 
tain  nature.  In  Gosling  v.  Gosling,''^  Sir  W.  P.  Wood,  V.  C, 
said  in  supi)orting  the  rule  of  Saunders  v.  Vautier:  "If  the 
property  is  once  theirs,  [the  cestui^]  it  is  useless  for  the  testalor 
to  attempt  to  impose  any  fetter  upon  their  enjo\-ment  of  it  in 
full,  so  soon  as  they  attain  twenty-one."  This  is  merely  a 
reiteration  of  the  rule.  It  contains  no  reason  upon  which  the 
rule  is  founded.  Lord  Langdale,  M.  R.,  in  Curtis  v.  Lukin,''- 
in  an  opinion  rendered  a  year  and  a  half  after  Saunders  r. 
Vautier,  said,  speaking  of  the  case  of  an  absolute  vested  interest 
in  a  legatee,  subject  to  a  provision  that  he  is  not  to  have  pos- 
session until  a  time  subsequent  to  his  attaining  twenty-one : 
"The  court,  therefore,  has  thought  fit  (I  do  not  know  whetlier 
satisfactorily  or  not)  to  say,  that  since  the  legatee  has  such  the 
[a]  legal  right  and  power  over  the  property  and  can  deal  with 
it  as  he  pleases,  it  will  not  subject  him  to  the  disadvantage  of 
raising  money  by  selling  or  charging  his  interest,  when  the  thing 
is  his  own  at  the  very  moment."  !More  recently,  the  court  of 
appeal  has  put  forward  such  reasons  as  inconsistency  or  repug- 
nancy in  the  jiostponement,   and   that   it   is  a   necessary  conse- 

Rocke  V.  Rocke,  9  Beav.  66;   Swaf-  475;   Talbot  v.  Jevers,  L.  R.  20  Eq. 

field    v.    Orton,   1   DeG.   &   Sm.    326  255;   Be  Cameron,  26  Ch.   Div.   19; 

(Knight  Bruce,  V.-C,  said  of  post-  He  FitzGerald 's  Settlement,  37  Ch. 

ponements:      "  Precarious    and    un-  Div.  18;   Re  Parrj%  60  L.  T.  N.  S. 

effectual");     Be     Young's     Settle-  489;    Lazarus    i'.   Lazarus,   14  Vict, 

ment,    18    Beav.    199;    Coventry    v.  L.  R.  806,  note  (e). 

Coventry,    2    Dr.    &    Sm.    470;    Be  48  [1895]   A.  C.  186,  193. 

Jacob's    Will,    29    Beav.    402;    Ma-  ^o  5  Bea%'.  147. 

grath    V.    Morehead,    L.    R.    12    Eq.  so  15  Beav.  166. 

491;  Snow  v.  Pouldcu,  1  Keen  186;  ^i  H.  R.  V.  Johns  265,  272. 

Hilton  V.  Hilton,  L.  R.  14  Eq.  468,  ■'■:  5  Beav.  147.  156. 
Kales  Flit.  Int. — jl                           ^^() 


§  735]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [Ch.    XXVII 

quence  of  making  an  absolute  gift  that  there  can  be  no  post- 
ponement of  enjoyment.^ ^  Such  reasons  have  even  been  half- 
heartedly urged  by  the  Law  Lords/'^'^ 

§  735.  The  reason  of  repugnancy  unsound :  It  is  believed 
that  the  last  of  the  reasons  above  mentioned  is  the  most  easily 
disposed  of.  It  can  hardly  be  said  that  the  postponement  is 
void  for  repugnancy  or  because  one  cannot  make  an  absolute 
gift  and  then  direct  how  it  shall  be  enjoyed.  If  such  argu- 
ments are  to  prevail  or  be  conceded  as  of  general  validity,  all 
shifting  interests  by  deed  and  shifting  executory  devises  will 
be  void  for  repugnancy  as  well  as  a  provision  for  forfeiture 
on  alienation  attached  to  a  legal  life  estate,  and,  gifts  over  on 
intestacy.  It  would  hardly  seem  possible,  on  the  ground  of 
repugnancy  alone,  to  violate  that  modern  fundamental  principle 
of  all  conveyances  and  especially  of  conveyances  by  will,  that, 
in  the  absence  of  any  ground  of  public  policy  embodied  in  a 
rule  to  the  contrary,  the  intent  of  the  transferor  shall  be  carried 
out.  It  is  the  freedom  founded  upon  this  rule  which  has  dis- 
tinguished the  development  of  conveyancing  since  the  time  of 
Henry  the  VIII,  and  it  is  the  constant  gain  in  force  of  this 
principle  which  enables  Gray,  at  the  end  of  his  chapter  on 
future  interests,  in  his  Rule  against  Perpetuities,^^  to  declare 
that  ''originally  the  creation  of  future  interests  at  law  was 
greatly  restricted,  but  now,  either  by  the  Statutes  of  Uses  and 
Wills  or  by  modern  legislation,  or  by  the  gradual  action  of  the 
courts,  all  restraints  on  the  creation  of  future  interests,  ex- 
cept those  arising  from  remoteness,  have  been  done  away. 

It  may  be  argued  that  if  one  proceeds  upon  the  principle  of 
allowing  the  testator  to  do  what  he  wants  with  his  own,  he 
does  so  in  obedience  to  a  principle  which  declares  that  dominion 
over  an  absolute  interest  should  not  be  interfered  with.  Why, 
then,  where  there  is  an  absolute  equitable  interest,  does  not  the 
application  of  the  same  principle  require  that  the  cestui  can 
terminate  the  trust  regardless  of  the  postponement?  To  this 
it  must  be  answered  that  the  very  question  at  issue  is  whether 
the  cestui  has  the  whole  interest  or  merely  an  interest  hampered 
with  an  indestructible  trust.     The  principle  in  favor  of  per- 

53Weatherall    v.    Thornburgh,    8  54  Wharton  v.  Masterman,  [1895] 

Ch.    Div.    261;    Harbin    v.    Master-       A..C.  186. 
man,  [18941  2  Ch.  184.-  ss  §  98. 

850 


Ch.    XXVII]  FORFEITURE   AND    RESTRAINTS   ON    AUENATION  [§737 

mitting  one  to  do  what  he  pleases  with  his  own  cannot  be  in- 
voked to  make  the  trust  destructible  until  you  have  decided 
the  very  point  in  issue.  On  the  other  hand,  all  are  agreed  that 
the  settlor  or  testator  is  the  absolute  owner  without  restriction. 
All  must,  therefore,  agree  that  the  principle  conceded  applies 
when  we  coine  to  consider  what  he  may  do  with  his  own.  He 
should  be  able  to  settle  it  with  what  restrictions  he  pleases  so 
long  as  no  princii)le  of  public  policy  is  violated. 

§  736.  Reasoning  based  upon  public  policy — Preliminary : 
Lord  Langdale,-'*^  adopted  the  only  line  of  reasoning  open  to 
one  endeavoring  to  support  the  decision  of  Saunders  v.  Vautier, 
when  he  attempted  to  justify  the  rule  of  that  case  upon  .some 
ground  of  public  policy.  It  is  clear,  however,  that  tlic  i)uhlic 
policy  which  makes  void  restraints  an  alienation  of  absolute  in- 
terests is  inapplicable,  for  in  the  case  of  a  postponed  enjoy- 
ment merely,  no  alienation  is  prohibited  and  no  creditor  is  de- 
prived.'^ The  cestui  whose  interest  is  subject  to  a  postponed 
enjoyment,  may  alienate  with  perfect  freedom.  The  whole  effect 
of  the  postponed  enjoyment  clause  is  simplj-  to  provide  that 
the  trust  shall  continue.  The  narrower  question,  therefore,  be- 
comes: is  there  any  reason  of  public  policy  against  the  making 
of  a  trust  indestructible  so  insistent  that  it  warrants  the  in- 
troduction of  a  rule  which  defeats  the  settlor's  intention  ? 

§  737.  The  duration  of  the  postponement  must  be  limited 
in  time:  ^*  At  the  outset  of  this  discussion  it  must  be  conceded 
that  the  duration  of  the  postponement  must  be  limited  in  time. 
The  allowance  of  postponements  calculated  to  make  trusts  in- 
destructible forever,  or  for  a  great  length  of  time,  is  not  to  be 
sustained  under  any  consideration.  Fortunately  for  the  argu- 
ment, the  length  of  time  that  a  postponed  enjoj'ment  maj^  la.st. 
assuming  it  to  be  valid,  has  been  settled  by  the  English  ca.ses 
themselves.  In  England  the  restraint  upon  alienation  of  an 
absolute  equitable  interest  has  been  permitted  only  when  im- 
posed for  the  benefit  of  married  women  and  to  be  effective  during 

86  Curtis  V.   Lukin,   5   Beav.   147,  §  114a;     Sanford     v.     Lackland,     2 

156.  Dill  (U.  S.)  6;  Gray's  Restraints  on 

BT  Piercy  v.  Roberts,  1  Myl.  &  K.  Alienation,   2nd   ed.,   §114;    Havens 

4;   Gray's  Restraints  on  Alienation,  r.  Healy,  15  Barb.  296;   Gray's  Re- 

2nd   ed.,    §106;    Sears   t'.    Putnam,  straints     on     Alienation,     2nd     ed., 

102    Mass.    5,    semble;    Gray's   Re-  §116. 

straints     on     Alienation,     2nd     ed.,  s^  See  ante,  §§  658-661. 

851 


§738] 


ILLEGAL    CONDITIONS    AND    RESTRAINTS   [Ch.    XXVII 


coverture.  With  regard  to  sucli  a  restraint  on  alienation,  it 
lias  now  become  the  settled  rule  of  the  English  cases,  that  it 
is  wholly  void  if  it  may  possibly  last  longer  than  a  life  in  being 
and  twenty-one  years.-''^  Nothing  ought  to  be  more  certain  than 
that  the  postponed  enjoyment  clause,  valid  under  the  doctrine 
of  Claflin  v.  Claflin,  must  be  subject  to  the  same  qualification. 
It  is,  therefore,  whollj-  void  if  it  may  possiblj^  continue  longer 
than  a  life  in  being  and  twenty-one  years.^"  It  should  be  ob- 
served, however,  that  the  above  qualification  is  not  an  applica- 
tion of  the  Rule  against  Perpetuities.  So  long  as  it  is  assumed 
that  the  cestui  has  a  present  absolute  interest  subject  only  to 
a  postponed  enjoyment,  no  future  interest  is  involved.  There 
tan,  therefore,  be  no  question  of  the  application  of  the  Rule 
against  Perpetuities.''^  The  rule  governing  the  creation  of  post- 
ponements is  a  separate  one  which  limits  the  time  during  which 
a  trust  may  be  rendered  indestructible. 

§  738.     Consideration  of  the  precise  issue  involved:     The 
precise  question  has  then  become:  what  reason  of  public  policy 


39/?!,  re  Eidley,  11  Ch.  Div.  645 
(1879) ;  Gray's  Restraints  on  Alien- 
ation, 2nd  ed.,  §§  272b-272c. 

soKohtz  V.  Eldred,  208  111.  60, 
72,  semble.  See  also  Sadler  v. 
Pratt,  5  Sim.  632;  Jackson  v.  Mar- 
joribanks,  12  Sim.  93;  Shallcross' 
Estate,  200  Pa.  St.  122  (1901), 
semble;  Winsor  v.  Mills,  157  Mass. 
362,  semble,  accord.  In  Kentucky 
there  is  a  statutory  provision  to  the 
same  effect:  Ky.  Stats.  (1903),  sec. 
2360;  Johnson's  Trustee  v.  John- 
son, 79  S.  W.  293  (Ky.  1904). 

61  Gray,  in  the  first  edition  of  his 
Rule  against  Perpetuities,  §  432,  at- 
tempted to  support  the  result  of  the 
English  cases,  making  void  re- 
straints on  anticipation  in  married 
women's  settlements  which  lasted 
too  long,  upon  the  ground  that  the 
Rule  against  Perpetuities  was  vio- 
lated. It  was  there  argued  that  it 
was  a  condition  precedent  to  the 
payment  of  each  dividend  that  the 
time  for  its  payment  should  arrive. 


But  even  under  such  a  view  there 
was  the  difficulty  that  the  whole  re- 
straint was  void  and  not  merely  so 
much  as  extended  beyond  the  life 
or  lives  in  being  and  twenty-one 
years.  But  what  condition  prece- 
dent can  be  imagined  where  there 
is  only  a  postponement  as  in  Claf- 
lin V.  Claflin?  The  reasoning  pro- 
posed by  Professor  Gray  to  sup- 
port the  rule  of  the  English  cases 
cannot,  it  is  believed,  apply  where 
you  come  to  the  rule  of  Claflin  v. 
Claflin.  In  the  second  and  third 
editions  of  Gray 's  Rule  against  Per- 
petuities we  find  the  learned  author 
suggesting  the  validity  on  principle 
of  the  married  women's  clause 
against  anticipation  (§  121f)  and 
placing  the  'invalidity  of  the  post- 
poned enjoyment  clause,  not  on  the 
ground  that  the  Rule  against  Per- 
petuities is  violated,  but  upon  the 
ground  that  the  restraint  lasts  too 
long  (§121i). 


852 


CH.    XXVII J  FORFEITURE    AND    RESTRAINTS    ON    ALIENATION  [§738 

is  there  against  a  postponed  enjoyment,  properly  limited  as  to 
its  duration  in  time,  of  an  absolute  equitable  interest? 

It  .seems  not  to  have  been  decided  whether  a  creditor  or  a 
grantee  of  the  cestui  would  be  entitled  to  immediate  possession 
of  the  property,  or  would  take  only  the  cestui' s  title  suh  niodo.*"^ 
Gray  makes  the  point,  that  "if  a  creditor  or  grantee  can  get 
immediate  possession  of  the  fund,  the  restraint  is  a  mere  form. 
The  cestui  que  trust  can  by  the  simple  ceremony  of  making  a 
deed  of  his  interest  to  a  third  person  and  taking  a  deed  back, 
hold  the  property  free  from  all  fetters."*^-  But  if  the  post- 
ponement is  a  mere  form,  how  can  it  do  any  harm  to  anybody  ? 
The  testator's  harmless  whim  ought  to  l)e  allowed  to  prevail 
in  the  interest  of  supporting  his  expressed  intention.  Who 
ever  heard  of  its  being  a  ground  of  public  policy,  upon  which 
a  testator's  object  was  to  be  completely  frustrated,  that  what 
he  desired  to  accomplish  might  be  avoided?  Such  an  argu- 
ment would  defeat  the  very  rule  which  Gray  contends  for,  since 
it  is  perfectly  clear  that  even  under  the  English  cases  all  the 
results  of  Claflin  v.  Claflin  can  be  obtained  by  making  tlie  trus- 
tee a  beneficiary  to  a  small  extent.  Equity,  then,  acting  ac- 
cording to  the  general  rule,  will  not  decree  a  conveyance  to 
the  beneficiaries  unless  all  join  in  the  request.''^^^ 

"If,  on  the  other  hand,"  Professor  Gray  continues,  "the 
creditor  or  grantee  can  take  possession  of  the  property  only  at 
the  time  when  the  settlor  or  testator  has  directed,  for  example 
when  the  cestui  que  trust  reaches  forty  years,  then  any  sale  or 
taking  from  the  cestui  que. trust  will  be  under  the  circumstances, 
highly  disadvantageous  to  him."  Obviously,  the  learned  au- 
thor's idea,  is,  that  if  the  cestui  be  a  spendthrift,  the  position 
for  him  is  the  very  worst,  since  he  will  sell  at  a  ruinous  dis- 
count. If  he  is  not  a  spendthrift,  then  there  is  no  use  in  such 
a  clause..  It  is  submitted,  however,  that  there  is  nothing  in 
these  considerations  which  rises  to  the  dignity  of  a  ground  of  pub- 
lic policy  strong  enough  to  frustrate  the  settlor's  or  testator's  in- 
tention, as  expressed.  Tiie  two  extreme  cases  put,  indicate  no 
more  than  the  settlor's  or  testator's  lack  of  wisdom  in  inserting 

6ia  See    De    Ladson    i'.    Crawford,  «"  Gott  v.  Nairnc,  3  Ch.  Div.  278; 

106  All.  326  (Conn.).  Ames'  Cases  on  Trusts,  2nd  ed.,  455. 

62  Gray's    Eestraints    on    Aliena- 
tion, 2na  ed.,  §  124n. 

853 


§  738]  ILLEGAL    CONDITIONS    AND    RESTRAINTS   [Ch.    XXVII 

the  provision  which  he  has  expressed.  It  may,  perhaps,  be  ad- 
mitted that  lack  of  wisdom  is  clearly  shown  where  the  cestui 
is  a  spendthrift. 

Lord  Langdale,  M.  R.''^  suggested  that  there  might  be  a  per- 
fectly legitimate  reason  for  a  well  conducted  legatee  to  turn  his 
interest  into  cash,  and  that  it  would  be  unwise  to  enforce  the 
testator's  intention  so  as  to  "subject  him  to  the  disadvantage 
of  raising  money  by  selling  or  charging  his  interest,  when  the 
thing  is  his  own  at  this  very  moment."  Nevertheless,  in  giving 
this  reason,  the  Master  of  the  Eolls  seems  to  be  in  doubt  whether 
it  is  a  satisfactory  one  or  not.  It  certainly  has  not  been  re- 
peated. It  does  not,  it  is  believed,  come  up  to  a  reason  of  public 
policy  of  sufficient  strength  to  overturn  the  testator's  intention. 
At  most  it  shows  merely  a  lack  of  wisdom  on  the  part  of  the 
testator.  If  the  testator's  intention  is  to  fail  because  the  pro- 
vision wiiich  he  has  made  is  unwise,  there  would  be  no  end  of 
breaking  wills.  It  is  submitted,  however,  that  it  is  by  no  means 
clear  that  the  postponed  enjoyment  clause  is,  in  the  long  run, 
even  an  unwise  provision  where  the  cestui  is  not  a  spendthrift. 
Is  it  such  a  foolish  thing  for  a  testator,  even  when  he  has  per- 
fect confidence  in  his  grown  children,  to  direct  that  property 
left  them  shall  remain  in  the  hands  of  trustees  until  the  children 
reach  a  more  mature  age  than  that  of  twenty-one  years?  Is  it 
such  a  foolish  thing  to  encourage  cestuis  to  leave  the  personal 
care  of  their  property  in  the  hands  of  trustees  of  the  testator's 
selection  until  after  the  age  of  twenty-one? 

The  worst  charge  that  can  be  made  against  holding  these  post- 
poned enjoyment  clauses  valid,  seems  to  be  that  they  are  either 
harmless,  or  in  an  extreme  case,  viz :  where  the  cestui  is  a  spend- 
tlirift  and  insists  on  selling  his  equitable  interest  for  cash,  un- 
wise. To  defeat  the  testator's  intention  wholly  upon  so  trivial 
a  ground  ought  not  to  be  thought  of.  The  attitude  of  the  court 
in  Clafli7i  v.  Claflin  is  in  favor  of  carrying  out  the  settlor's  in- 
tention and  the  result  reached  is,  it  is  submitted,  proper. 

It  is  believed  that  Gray 's  violent  dislike  for  the  rule  of  Claflin 
V.  Claflin,  is  due  to  his  abhorrence  of  spendthrift  trusts.  Thus, 
he  suggests  «^  that,  if  twenty-one  is  too  young  for  a  person  to 
come  of  age,  the  legislature  extend  the  period  of  minority,  and 

64  Curtis   V.   Lukin,   5   Beav.    147,  65  Eestraints    on    Alienation,    2nd 

156.  ed.,  §  1240. 

854 


Ch.    XXVII]  FORFEITURE    AND    RESTRAINTS    ON    ALIENATION   [§739 

that  holding  valid  postponed  enjoyment  clauses,  is  a  species 
of  paternalism  without  the  advantages  of  paternalism  and  with 
only  its  irritating  and  demoralizing  features  retained.  All  this 
points  to  the  fact  that  an  overflow  of  animosity  towards  spend- 
thrift trusts  has  been  leveled  at  the  validity  of  postponed  en- 
joyment clauses.  There  is,  however,  no  reason  why  the  repulsion, 
however  excessive,  for  the  former,  should  include  the  latter.  It 
is  conceived  that  the  only  connection  between  the  doctrine  of 
spendthrift  trusts  and  the  doctrine  of  Claflin  v.  Claflin,  is  that 
both  rest  fnndnnientally  upon  the  rule  that  a  testator  or  settlor 
can  do  what  he  likes  with  his  property  so  long  as  no  rule  founded 
on  public  policy  is  contravened.  Hence,  where  spendthrift  trusts 
are  allowed  it  may  be  expected  that  Claflin  v.  Claflin  will  be 
followed.  It  is  by  no  means  true,  however,  that,  because  there 
is  no  reason  of  public  policy  against  such  a  postponement  as 
was  sustained  in  Claflin  v.  Claflin,  there  is  none  against  spend- 
thrift trusts.  The  writer  believes,  therefore,  that  while  spend- 
thrift trusts  are  entitled  to  all  the  abhorrence  which  Gray  has 
given  them,  yet  it  does  not  follow  that  the  postponement  clause, 
limited  properly  as  to  the  time  of  its  duration,  is  not  entirely 
harmless  and  proper. 

Topic  2. 

A  Holding,  However,  that  Restraints  on  Alienation   (At- 
tached TO  the  Absolute  and  Indefeasible  Equitable 
INTERF.ST  While  the  Trust  Remains  Indestruc- 
tible) are  Valid,  is-  Indefensible. 

§  739.  Such  a  holding-  has  been  made  in  Massachusetts  and 
Illinois:  The  writer's  defense  of  Claflin  v.  Claflin  ^^  was  predi- 
cated upon  the  fact  that  restraints  on  alienation  attached  to 
the  eqnitable  interest  while  the  trust  remained  indestructible 
would  be  held  void.  Gray's  distrust  of  the  doctrine  of  Claflin 
V.  Cloflin  was  founded  upon  the  view  that  it  meant  ultimately 
that  restraints  on  alienation  attached  to  the  eijuitable  fee  while 
the  trust  remained  indestructible  would  be  held  valid.    It  turns 

«6 149  Mass.  19  (which  is  printed  Future  Interests  in  1905,  ante, 
substantially  as  it  appeared  in   his       §§732-738). 

855 


§  739]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [Cn.    XXVII 

out  that  Gray  was  right.    A  recent  ease  in  Massachusetts  «^  and 
two  cases  in  Illinois  ^^  have  so  held. 

In  Wallace  v.  Foxivell  ^'-^  the  will  in  question  devised  an  ab- 
solute interest  in  realty  and  personalty  to  trustees  upon  trust 
to  pay  the  income  to  the  wife  for  life  and  at  her  death  one- 
half  the  net  income  was  to  be  paid  to  the  testator's  daughter 
for  life,  and  on  her  death  the  principal  was  to  be  distributed 
among  her  right  heirs.     The  other  one-half  of  the  net  income 
and  principal  was  disposed  of  by  the  4th  and  5th  clauses  as 
follows:     ''FourtJi^-Uipon  the  decease  of  my  said  wife,  Marcia 
I.   Spaulding,  to  pay  over  to  ray  son,  Howard  H.  Spaulding, 
and  to  his  wife,  Florence  B.   Spaulding,   one-half  of  the  net 
income  of  my  estate  in  such  proportions  as  they  may  see  fit, 
paying  more  or  less  to  the  one  or  the  other,  as  they  may  deem 
best,   during  the  lifetime   of  my   son,   Howard   H.   Spaulding, 
and  upon  the  decease  of  my  said  son,  Howard  11.  Spaulding, 
to  convey  one-half  of  my  estate  to  the  right  heirs  of  my  son, 
Howard  H.  Spaulding. "    "  Fifth— To  convey  to  my  son,  Howard 
H.  Spaulding,  after  the  decease  of  my  wife,  Marcia  I.  Spaulding, 
one-half  of  my  estate  at  such  time  as  may  seem  best  for  them 
to  do  so."    Howard  became  a  bankrupt  during  the  widow '^  life 
and  all  his  interest  was  sold  by  a  trustee  in  bankruptcy.    After 
the  death  of  the  widow  the  trustee  filed  a  bill  to  determine  what 
interest  the  person  claiming  under  the  bankruptcy  sale  had.    A 
decree  was  entered  that  the  purchaser  at  the  bankruptcy  sale 
had  obtained  no  interest  whatsoever.    This  was  affirmed. 

As  to  the  personal  estate  the  decision  is  unquestionably  cor- 
rect. The  Rule  in  Shelley's  Case  was  not  applicable  to  give  to 
Howard  any  absolute  interest  in  the  personalty."'^*  The  fifth 
clause  did  not  tend  to  indicate  that  Howard  was  to  have  any 
absolute  interest  in  the  personalty.  It  merely  gave  to  the  trus- 
tees a  power  to  convey  the  absolute  interest  to  Howard  in  his 
lifetime  if  they  saw  fit. 

As  to  the  real  estate  there  is  more  difficulty.  It  was  argued 
in  support  of  the  decree  that  there  was  a  general  trust  for  con- 

6T  Boston   Safe    Deposit   &   Trust  «»  250  lU.  616. 

Co.  V.  Collier,  222  Mass.  390  (1916).  "f  Lord  v.  Comstock,  240  111.  492. 

68  Wallace  v.  Foxwell,  250  111. 
616;  Hopkinson  v.  Swaim,  284  111. 
11. 

856 


Ch.  XXVTI]  forfeiture  and  restraints  ox  auenation  [§739 

version  so  that  all  of  Howard's  interest  was  personal  property. 
Therefore  the  Rule  in  Shelley's  Ca^e  could  not  apply.  This  point 
is  not  touched  upon  by  the  court.  It  is  fair  to  say,  tlicrcfor*', 
that  in  reaching  its  conclusion  it  assumed,  at  least  for  the  .sake 
of  argument  that  there  was  no  trust  for  conversion,  and  that  the 
Rule  1)1  Shelley's  Case  applied,'^^  .so  that  the  remainder  to  the 
heirs  of  Howard  became  a  remainder  in  foe  to  Howard  himself. 
The  court  sustained  the  decree  below  by  holding  that  the  ab- 
solute equitable  interest  of  Howard  obtained  by  him  as  a  residt 
of  the  application  of  the  Rule  in  Shelley's  Case  was  subject  to 
a  restraint  on  involuntary  alienation  placed  upon  it  by  the  t<'s- 
tator,'-  wliich  was  valid  and  effective  to  defeat  the  bankiuplcy 
sale. 


■!^  Ante,  §412. 

'2  First :  It  should  be  noted  that 
no  restraint  on  alienation  is  created 
by  words  directly.  The  restraint  is 
found  only  as  a  result  of  a  supposed 
general  scheme  to  protect  the  bene- 
ficiary. The  analytical  argument, 
however,  is  very  strong  against  the 
existence  of  any  restraint  on  alien- 
ation even  on  this  theory.  The 
.scheme  actually  used  is  the  regular 
one  adopted  where  spendthrift  trusts 
are  held  void.  We  have  here  a 
power  given  to  the  trustees  to  pay 
more  or  less,  as  they  see  fit,  to  the 
spendthrift  Howard  or  his  wife.  In 
short,  if  Howard  gets  into  financial 
difficulties  the  trustees  are  given  the 
means  of  saving  the  estate  from  his 
creditors  by  transferring  the  pay- 
ments to  his  wife.  This  is  the 
scheme  that  is  approved  by  Lord 
Eldon  in  Lord  v.  Bunn,  2  Y,  &  C.  C. 
C,  98.  It  is  regularly  used  in  Eng- 
land and  states  where  restraints  on 
alienation  were  held  void  even  when 
attached  to  a  life  estate.  The  de- 
vice is  entirely  distinct  and  different 
from  the  direct  restraint  on  alien- 
jtfion.  It  presupposes  the  accom- 
plishment of  the  testator 's  purpose 
without  anv  restraint  on  alienation. 


For  the  court  to  work  a  direct  re- 
straint on  alienation  out  of  it,  is 
to  impose  upon  the  testator  a 
scheme  which  there  is  every  reason 
to  believe  from  the  language  used 
he  did  not  have.  See  post,  §§  742- 
748. 

Second:  If  there  be  a  restraint 
on  alienation  then  it  is  observable 
that  it  is  attached  to  the  life  estate 
of  Howard  and  to  that  alone.  By 
the  Rule  in  Shelley 's  Case,  How- 
ard's  life  interest  is  not  affected  at 
all.  Only  the  remainder  to  How- 
ard 's  heirs  is  turned  into  a  remain- 
der in  fee  to  Howard  himself,  so 
that  Howard  then  has  an  equitable 
life  estate  together  with  his  wife, 
with  a  restraint  upon  his  alienating 
that  life  estate,  and  then  a  separate 
equitable  and  vested  remainder  in 
fee  in  himself  not  subject  to  any 
restraint  or  alienation.  As  the  life 
estate  and  the  remainder  in  fee 
only  coalesce  and  come  together  in 
a  single  fee  by  the  doctrine  of  mer- 
ger, there  will  be  no  merger  if  that 
will  prejudice  the  rights  of  others 
or  defeat  the  express  provision  of 
tiie  testator  in  the  carrying  out  of 
some  other  provisions  of  the  will. 
In  the  principal  case  if  the  wife  be 


857 


§  740 J  ILLEGAL    CONDITIONS    AND    RESTR.UNTS    [Ch.    XXVII 

In  Ilopkinson  v.  Sivaim'^''^  the  testator  devised  to  William  for 
life  and  the  fee  to  the  children  of  William,  with  power  in  Wil- 
liam to  appoint  a  trustee  for  the  children's  interest.  William 
appointed  a  trustee  and  provided  restraints  on  the  alienation  of 
the  children's  interests.  It  was  apparently  assumed  that  the 
trusteeship  was  to  continue  at  least  for  the  lives  of  the  children 
who  had  absolute  and  indefeasible  equitable  interests.  It  was 
assumed  also  that  the  restraints  on  alienation  would  continue  for 
the  same  period.  In  an  attempt  to  have  the  execution  of  the 
power  declared  wholly  inoperative,  it  was  contended  on  behalf 
of  the  children  that  the  restraints  on  alienation  were  void.  .The 
court,  however,  sustained  them.  After  pointing-  out  that  re- 
straints on  the  alienation  of  an  equitable  life  estate  were  valid 
spendthrift  trusts,  the  court  said  :  ' '  There  is  no  reason  for  such 
a  rule  in  the  case  of  a  life  estate  which  does  not  apply  equally 
to  a  fee  during  the  life  of  the  owner." 

§  740.  The  position  of  the  court  in  the  above  cases  is  incon- 
sistent with  decisions  already  made  and  adhered  to,  and  con- 
trary to  the  weight  of  authority :  The  one  holding  that  seems 
secure  is  that  a  restraint  on  alienation  attached  to  a  legal  fee 
is  void."'^  On  the  other  hand,  it  is  equally  well  settled  in  this 
State  that  a  restraint  on  alienation  attached  to  an  equitable  life 
estate  is  valid. '''^  The  same  rule  has  been  applied  to  legal  life 
estates  in  this  state,  the  position  being  taken  that  there  was  no 
logical  difference  in  the  application  of  a  rule  of  public  policy 

regarded  as  having  an  equitable  would  stand  subject  to  the  rights  of 
charge  upon  the  life  estate  of  her  his  wife  and  the  resftraint  on  alien- 
husband  for  such  part  of  the  in-  ation  and  Howard  would  have  a 
come  as  the  trustees  shall  determine,  separate  and  distinct  equitable  re- 
then  a  merger,  which  destroyed  the  mainder  in  fee  not  subject  to  any- 
life  estate,  would  prejudice  the  restraint  on  alienation.  In  this  view 
rights  of  the  wife.  So  a  merger  the  ultimate  remainder  in  fee  of 
might  destroy  the  restraint  on  alien-  Howard  must  have  passed  by  the 
ation  attached  to  Howard's  life  bankruptcy  sale.  The  court  denied 
estate  because  the  life  estate  to  this  conclusion,  it  is  believed,  only 
which  the  restraint  was  attached  by  assuming  that  the  restraint  on 
would  have  been  extinguished  and  alienation  was  applicable  to  the 
ceased  to  exist  by  reason  of  the  equitable  fee  which  Howard  took  by 
merger.  These  reasons  would  lead  the  Rule  in  Shelley's  Case, 
to  the  conclusion  that  no  merger  "s  284  lU.  11, 
would  occur,  (ante,  §  440),  and  that  ~*  Ante,  §  727. 
Howard's      equitable      life      estate  '^  Ante,  §§730  et  seq. 

858 


ClI.    XXVII]  FORFEITURE    AND    RESTRAINTS    ON    ALIENATION  [§  740 

to  the  restraint  on  the  alienation  of  a  legal  life  estate  and  the 
restraint  on  an  equitable  life  estate."''  In  view  of  these  known 
results,  what  should  the  court  do  with  the  restraint  on  the  alien- 
ation of  an  indefeasible  equitable  fee?  As  far  as  logical  de- 
duction is  concerned  one  would  have  supposed  it  impossible  to 
reach  any  other  conclusion  than  that  the  restraint  was  void. 
Such,  it  is  believed,  was  the  unanimous  result  of  the  author- 
ities'^  prior  to  the  recent  Massachusetts  and  Illinois  cases.  The 
latter  represent  an  innovation  in  the  law.  Every  case  relied 
upon  by  our  Supreme  Court  where  the  restraint  was  held  valid, 
was  one  where  the  restraint  was  placed  upon  an  equitable  life 
estate.'^^  In  Wagner  v.  Wagner'^  it  is  true  that  the  restraint  on 
alienation  was  attached  to  an  absolute  equitable  interest.  In 
that  ease,  however,  no  creditor  or  alienee  was  attempting  to 
enforce  tlie  conveyance  from  the  cestui.  The  only  point  actually 
involved  was  the  attempt  to  make  the  trust  of  an  absolute  and 
indefeasible  equitable  interest  indestructible  for  a  time  so  that 
the  cestui  could  not  terminate  the  trusts  without  the  consent 
of  the  trustee.  The  rights  of  creditors  or  involuntary  alienees 
of  the  cestui  were  not  in  the  slightest  degree  involved  or  under 
consideration.  The  holding  of  the  court  that  the  trust  was  in- 
destructible by  the  cestui  was  placed  upon  the  precise  ground 
that  such  a  provision  was  valid  as  against  the  cestui.  To  such 
a  holding  there  cannot  well  be  any  sound  objection.*^  The  lan- 
guage of  the  court  which  referred  to  the  trust  as  a  spendthrift 
trust  and  intimated  that  there  was  a  restraint  on  alienation 
which  would  be  valid  as  against  creditors  or  alienees  was  entirely 
uncalled  for  and  outside  the  scope  of  the  decision.  It  was  mere 
dictum. 

76  Christy  v.  Pulliam,  17  111.  59;  see  Foulke's  Rule  against  Perpctui- 

Pulliam    V.    Christy,    19    111.    331;  ties  in  Pennsylvania,  §§  245-254. 

Christy  v.  Ogle,  33  111.  295;   Emer-  ^s  stambaugh 's    Estate,    135    Pa. 

son  V.  Marks,  24  111.  App.  642.  St.  585;  Baker  v.  Brown,  146  Mas?. 

7TGray,  Restraints  on  Alienation,  369;   Patten  v.  Herring,  9  Tex.  Civ. 

2nd  ed.  §§105,  106,  113  et  seq.    Sec  App.  640;   Steib  v.  Whitehead,  111 

also  Sears  v.  Putnam,  102  Mass.  5,  111.    247;    Bennett    v.    Bennett,    217 

9;  Sanford  v.  Lackland,  2  Dill.  (U.  111.  434. 

S.)    6;    Havens  v.  Healy,   15   Barb.  "9  244  111.   101. 

(N.  Y.)   296.     For  a  discriminating  »<^  Ante,  §§  732  et  seq. 
report  upon  the  Pennsylvania   cases 

859 


§  741]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [Ch.    XXVII 

§  741.  The  recent  cases  sustaining-  the  restraint  on  aliena- 
tion attached  to  absolute  and  indefeasible  equitable  interests 
are  contrary  to  sound  public  policy:  Six  centuries  ago  tlv> 
great  feudal  landowners  of  England,  by  the  Statute  De  Bonis. 
secured  for  themselves  the  right  to  create  an  estate  in  A  and 
the  heirs  of  his  body  which  would  descend  to  A's  lieirs  as  long 
as  his  issue  continued  and  would  be  inalienable  by  any  holder 
of  the  estate  so  as  to  bar  the  right  of  the  issue  to  inherit.  For 
a  century  the  estate  tail  so  created  remained  inalienable.  Then 
the  courts  brought  the  intolerable  evil  of  sucli  a  restraint  on 
alienation  to  an  end  by  allowing  the  estate  tail  to  be  aliened 
in  fee  by  the  common  recovery.^^  A  few  years  later  by  statutes 
the  same  effect  was  given  to  the  levying  of  a  fine  by  the  tenant 
in  tail.^-  Ever  since,  the  fee  tail  has  been  freely  alienable  in  fee 
simple  by  fines  and  recoveries,  and,  more  recently,  by  modern 
disentailing  conveyances.  In  the  16th  century  the  effort  to  place 
a  condition  of  forfeiture  on  any  attempt  to  bar  the  entail  by  a 
fine  or  recovery  was  held  invalid. ^^  The  attempt  was  branded 
as  an  effort  to  create  a  perpetuitij — meaning  a  perpetually  in- 
alienable estate.  Have  we  not  in  effect  returned  to  the  state 
of  the  law  as  it  was  originally  made  in  favor  of  the  great  feudal 
land  owners  by  the  Statute  De  Donis?  We  cannot,  of  course, 
in  Illinois  today  create  an  estate  tail.  We  can  do  better.  We 
can  have  an  equitable  fee  or  an  absolute  equitable  interest  in 
personal  property  which  can  be  made  inalienable  during  the  life 
of  the  owner.  His  interest  cannot  be  taken  for  his  debts  and  he 
cannot  part  with  his  interest.  The  obvious  thing  which  he  can 
do  is  to  pass  it  on  to  the  next  generation  with  the  same  restraint 
and  so  on  in  infiuitiim.  If  such  a  practice  becomes  popular 
will  not  the  distribution  of  wealth  in  Illinois  in  time  be  about 
as  satisfactory  as  it  was  in  England  in  the  15th  century  after  the 
Statute  De  Donis  had  been  in  force  for  a  hundred  years? 

We  had  supposed  that  the  courts  were  traditionally  inter- 
ested in  the  freedom  of  alienation  and  the  continuous  redistribu- 
tion of  wealth,  and  against  decisions  which  aid  the  perpetuation 
of  great  fortunes  in  the  hands  of  the  few.  We  had  supposed 
that   one  of  the   reasons  urged   to  mitigate  the   evil   of  large 

^^  Antf,  S17;   Gray,  Rule  against  f^-^  Ante,  §17;  Gray,  Eeetraints- on 

I'.'ilK'tiiitirs,  2nd  od.  §141.  Alienation,  2nfl  ed.   §77. 

«2  Id. 

860 


Ch.   XXVII]  FORFEITURE    AXD    RESTRAINTS    ON    ALIENATION  [§  743 

fortunes  in  the  hands  of  individuals  was  that  iu  a  few  genera- 
tions they  wonhl  all  1)0  redistributed  by  natural  processes.  We 
had  supposed  that  a  rule  which,  when  taken  advantage  of, 
tended  to  stop  this  process  of  redistribution,  was  in  the  highest 
degree  inimical  to  the  interests  of  the  public.  We  had  sup- 
posed that  this  was  the  well  recognized  basis  upon  which  courts 
had  for  centuries  held  the  restraint  on  alienation  attached  to  a 
legal  or  equitable  fee  to  be  void. 

TITLE  VI. 

CONSTRUCTION— WHAT    WORDS    ARE    SUFFICIENT    TO 

CREATE  RESTRAINTS  ON  ALIENATION  OR  A 

SO-CALLED    SPENDTHRIFT    TRUST. 

§  742.  Introductory:  A  mere  trusteeship,  even  though  it  is 
for  the  protection  of  the  beneficiaries,  ought  not,  as  a  matter  of 
taste,  if  for  no  other  reason,  to  be  called  a  "spendthrift  trust." 
Only  where  there  is  added  to  the  trusteeship  express  restraints 
on  alienation  is  it  justifiable  to  call  the  creation  a  spendthrift 
trust.  Whether  restraints  on  alienation,  voluntary  or  involun- 
tary, or  both,  are  added  ought  to  be  determined  by  the  applica- 
tion of  the  usual  principles  of  construction  to  the  language 
used.  If  the  restraint  is  not  expressed,  no  amount  of  extrinsic 
evidence  or  speculation  and  conjecture  as  to  the  testator's  or 
settlor's  inducement  ought  to  be  permitted  to  inject  it  into  the 
will  or  settlement.  The  fact  is,  however,  that  our  Supreme  Court 
has  applied  the  term  "spendthrift  trust"  to  trusts  where  there 
were  no  express  restraints  on  alienation.  A  more  detailed  analy- 
sis of  these  cases  and  the  extent  to  which  they  go  is  important. 

§  743.  Bennett  v.  Bennett :  ^^  The  precise  question  at  issue 
in  this  case  was  whether  a  legacy  in  trust  at  the  legatee's  age  of 
forty  could  be  required  to  be  paid  to  the  legatee  before  he  reached 
forty.  The  fact  that  there  was  a  gift  over  if  the  legatee  died 
under  forty  settled  any  such  contention  in  the  negative.  But 
the  court  went  on  to  hold  that  the  legacy  was  contingent  in  the 
sense  of  being  subject  to  a  condition  precedent  that  the  legatee 
survive  the  age  of  forty  and  in  aid  of  that  interpretation  insisted 
that  the  testator  had  expressed  the  spendthrift  trust  purpose. 
The  real  argument,  it   is  submitted,   was   not   tlmt  theri-  w;!s  a 

S4  1217  HI.  4:U,  442. 

861 


§  744]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [ClI.    XXVII 

restraint  on  alienation  by  implication,  but  that  the  spendthrift 
trust  purpose  made  an  argument  in  favor  of  the  contingency 
of  the  legacy  because  it  was  only  by  holding  the  legacy  con- 
tingent that  the  spendthrift  trust  purpose  could  be  effected  in 
the  absence  of  express  restraints  on  alienation.  Nevertheless, 
the  court  said:  **It  is  not  necessary  that  an  instrument  creating 
a  spendthrift  trust  should  contain  an  expressed  declaration  that 
the  interest  of  the  cestui  que  trust  in  the  trust  estate  shall  be 
beyond  the  reach  of  his  creditors,  provided  such  appears  to  be 
the  clear  intention  of  the  testator  or  donor  as  gathered  from 
all  parts  of  the  instrument  construed  together  in  the  light  of 
the  circumstances."  There  M-as  no  discretion  vested  in  the 
trustee  with  regard  to  the  payment  of  income  or  principal  to 
the  beneficiary.  All  the  court  had  before  it  upon  which  to  find 
a  spendthrift  trust  was  the  trusteeship  and  the  gift  of  income. 
The  court  said:  "The  fact  that  a  trustee  was  appointed  and 
vested  with  the  estate  and  the  beneficiary  was  given  the  income 
only  is  a  circumstance  from  which  the  intention  of  the  testator 
to  create  a  spendthrift  trust  may  be  inferred." 

§  744.  Wa^er  v.  Wa^er :  s^  Here  the  question  was 
whether  the  cestui,  who  was  of  age,  could  terminate  the  trustee- 
ship of  his  absolute  and  indefeasible  equitable  interest  before  the 
time  fixed  by  the  testator.  It  was  held  that  he  could  not,  fol- 
lowing the  Rule  of  Claflin  v.  Claflm.^^  This  decision  is  believed 
to  be  sound. ^"  The  court  had  no  occasion  to  pass  on  the  question 
whether  there  was  a  spendthrift  trust  in  the  sense  of  restraints 
on  alienation  of  the  absolute  equitable  interest.  Nevertheless, 
although  there  were  no  express  restraints  on  alienation  the  court 
insisted  that  there  was  a  spendthrift  trust.  It  said :  "To  create 
a  valid  spendthrift  trust  it  is  not  necessary  that  the  cestui  que 
trust  should  be  denominated  a  spendthrift  in  the  will  or  that 
the  testator  should  give  his  reasons  for  the  creation  of  it.  Nor 
is  it  necessary  that  the  will  shall  in  express  terms  contain  all 
the  restrictions  and  qualifications  incident  to  such  trusts.  If, 
upon  a  consideration  of  the  will,  it  appears  the  intention  of  the 
testator  was  to  create  such  a  trust,  effect  will  be  given  to  the 
intention.  Where  the  language  used  is  sufficient  to  create  a 
spendthrift  trust,  we  think  no  inquiry  can  be  made  whether  the 

85  244  111.  101,  111.  ST  Ante,  §§  732  et  seq. 

8c  Ante,  §  732. 

862 


Ch.    XXVII]  FORFEITURE    AND    RESTRAINTS    ON    ALIENATION  [§745 

person  for  whose  use  it  was  created  was,  in  fact,  a  spendthrift, 
and  the  allegations  of  the  bill  in  this  case  that  the  sons  were 
sui  juris,  compos  mentis  and  sober  and  industrious  business 
men  cannot  be  considered  in  construing  the  codicil."  It  is,  of 
course,  possible  that  the  court  was  here  using  "spendthrift 
trust"  only  in  the  sense  of  an  indestructible  trust  without  re- 
straints on  alienation.  The  later  cases,  however,  make  this  im- 
probable. 

§  745.    Wallace  v.  Foxwell: ««    Here  the  court  held  that  the 
interest  in  question  was  not  subject  to  a  sale  in  bankruptcy  and 
this  was  based  upon  the  fact  that  a  spendthrift  trust  was  created. 
Thus  the  existence  of  a  valid  restraint  on  involuntary  aliena- 
tion was  directly  involved.    There  was,  it  is  submitted,  no  lan- 
guage expressly  creating  any  such  restraint  on  alienation.     The 
language  of  the  will  was  "to  pay  over  to  my  son,  Howard  H. 
Spaulding,  and  to  his  wife,  Florence  B.  Spaulding,  one-half  of 
the  net  income  of  my  estate  in  such  proportions  as  they  may  set 
fit,  paying  more  or  less  to  the  other,  as  they  may  deem  best, 
during  the  lifetime  of  my  son,  Howard  H.  Spaulding,  and  upon 
the  decease  of  my  said  son,  Howard  H.  Spaulding,  to  convey 
one-half  of  my  estate  to  the  right  heirs  of  my  son,  Howard  H. 
Spaulding."     What  the  court  did  was  to  find  by  reference  to 
the  extrinsic  circumstances,  an  intent  of  the  testator's  induce- 
ment to  place  the  property    beyond  the  reach  of  Howard's  cred- 
itors.    This  appears  from  the  following  language  of  the  court: 
"Considering,  in  connection  with  the  will,  the  financial  condi- 
tion of  Howard,  which  was  known  to  his  father,  and  the  fact 
that  Howard  was  a  married  man  twenty-nine  years  old  and  then 
had  one  child,  we  find  reasons  why  the  testator  might  have  de- 
sired to  conserve  the  property  by  placing  it  beyond  the  reach 
of  Howard's  creditors  and  leaving  it  so  his  family  might  receive 
the  income  from  it.     *     *     *     [Quoting  from  Bennett  v.  Ben- 
nett.]    It  is  not  necessary  that  an  instrument  creating  a  spend- 
thrift trust  should  contain  an  expressed  declaration  that  the 
interest  of  the  cestui  que  trust  in  the  trust  estate  shall  be  be- 
yond the  reach  of  his  creditors,  provided  such  appears  to  be 
the  clear  intention  of  the  testator  or  donor  as  gathered  from  all 
parts  of  the  instrument  construed  together  in  the  light  of  the 
circumstances." 

88  250  111.  616,  618,  626,  628. 

863 


§  746]  ILLEGAL    CONDITIONS    AND    RESTR.VINTS   [CH.    XXVII 

§  746.     O'Hare  v.  Johnston:  ^^    This  case  is  consistent  with 
the  other  decisions  of  the  court.    There  the  question  was  whether 
a  gift  to  grandchildren  thirty  years  after  the  testator's  death 
was  contingent  on  the  grandchildren  surviving  that  period.    One 
of  the  arguments  in  favor  of  the  contingency  of  the  gift  was  that 
a  spendthrift  trust  was  created,  or  at  least  that  there  was  a  spend- 
thrift trust  purpose  manifested.     The  court  held  that  if  such 
were  the  fact,  nevertheless,  the  arguments  in  favor  of  vesting 
overcame  it.     But  the  court  intimated  in  this  case  that  there 
was  no  spendthrift  trust  purpose.     It  said:    "There  is  nothing 
in  the  wording  of  the  will  itself  as  to  this  trust  that  iudieates 
that  it  is  of  a  spendthrift  character.     We  find  no  restraint  ou 
alienation  and  no  discretion  as  to  the  payment  of  income  or 
principal."    Then  the  court  weighed  and  balanced  the  extrinsic 
evidence  as  follows:     "It  is  true  there  is  evidence  tending  to 
show  that  the  testator  had  expressed  doubts  as  to  the  son  settling 
down  to  business  and  as  to  whether  he  would  be  able  to  take 
care  of  himself,  and  stated  that  the  daughter,  while  in  school, 
had  been  accustomed  to  spend  a  good  deal  of  money  which  the 
father  had  provided;  that  she  was  under  age  at  the  time  the 
will  was  drawn  and  that  both  the  son  and  daughter  had  de- 
pended on  their  father  for  support.    But  it  is  also  true  that  this 
fund  referred  to  the  grandchiklren  as  well  as  the  children,  and 
the  testator,  naturally,  could  not  form  any  idea  as  to  whether 
they  would  need  the  protection  of  a  spendthrift  trust.     It  is 
the  intention  of  the  testator  that  decides,  under  the  authorities, 
the  character  of  the  trust.     If  it  is  shown  that  his  intention  in- 
dicates a  spendthrift  trust,  the  court  will  not  inquire  whether 
the  beneficiary  is,  in  fact,  a  spendthrift.     This  will  does  not  in- 
dicate that  the  testator  thought  his  children  were  spendthrifts. 
He  gave  to  each  of  them  valuable  real  estate  and  a  large  amount 
of  other  property.     In  addition  to  this  he  gave  them  the  in- 
come from  the  trust  fund,  which  tends  strongly  to  show  that  he 
had  no  suspicions  or  apprehensions  as  to  their  ability  to  handle 
their  own  property     *     *     '''     the  giving  of  large  sums  directly 
to  them    [the  children]    indicates  that  the  trust  was  not  of  a 
.spendthrift  character.     There  is  another  reason  that  could  be 
urged  against  the  view  that  the  testator  considered  this  a  spend- 
thrift trust.     He  would  hardly  have  appointed  his  son  one  of 

89  27:{   111.  4.58,  468-469. 

864 


ClI.    XXVII]  FORFEITURE   AND    RESTRAINTS    ON    ALIENATION  [§  748 

the  executors  if  he  had  considered  him  a  person  not  to  be  trusted 
with  business  matters.  We  tliink  the  conclusion  might  well  be 
drawn  tliat  the  reason  for  creating  this  trust  was  based  on  the 
desire  of  the  testator  to  keep  his  property  in  his  own  descend- 
ants and  prevent  it  from  going,  in  the  next  generation,  to  strang- 
ers to  his  blood.  This  trust  was  certainly  an  appropriate  method 
for  bringing  about  this  result." 

§  747.  Hopkinson  v.  Swaim-*"  and  Newcomb  v.  Masters:  "' 
In  the  former  case  the  main  question  was  whether  an  indestruc- 
tible trust  was  void  because  it  was  required  to  continue  too 
long.  Incidentally  it  was  argued  that  there  were  restraints  on 
alienation  of  absolute  equitable  interests  which  were  void.  There 
was  here  an  express  restraint  on  alienation  for  the  payment  of 
debts.  The  court,  however,  seem  to  have  found  from  the  whole 
context  and  the  "object"  of  the  testator  a  restraint  on  voluntary 
alienation  also. 

In  Newcomb  v.  Masters  there  was  a  devise  to  trustees  for  the 
life  of  the  life  tenant  with  no  active  duties,  but  with  express 
provisions  of  forfeiture  on  alienation  by  the  life  tenant.  It  was 
held  that  the  presence  of  the  provision  of  forfeiture  on  aliena- 
tion did  not  create  a  spendthrift  trust  so  as  to  give  rise  to  active 
duties  in  the  trustee  which  would  prevent  the  Statute  of  Uses 
from  executing  the  so-called  trust,  or  to  create  restraints  on 
alienation  which  would  make  void  a  lease  made  by  the  life  tenant 
without  the  perfecting  of  a  forfeiture.  This  conclusion  is  sound. 
A  provision  of  forfeiture  on  alienation  cannot,  it  is  believed, 
be  turned  into  a  mere  restraint  on  alienation,  and  the  presence 
of  a  provision  of  forfeiture  on  alienation  certainly  does  not 
provide  active  duties  in  the  trust  so  as  to  prevent  the  execution 
of  a  use  by  the  Statute  of  Uses. 

§  748.  Conclusion:  Taken  as  a  whole  the  foregoing  cases 
show  as  well  marked  an  instance  as  any  where  our  Supreme 
Court  actually  interprets  the  instrument  by  finding,  not  what 
the  testator  expressed  in  words,  but  what  was  the  intention  of 
his  inducement.  The  object  and  purpose  of  the  inducement  is 
in  these  eases  apparently  made  not  merely  the  standard  of  in- 
terpretation but  the  very  subject-matter  to  be  interpreted.    This 

»o  284  111.  11,  22-23.  9'  287  111.  26. 

Kales  Put.  Int. — 55  ftfj*^ 


§  748]  ILLEGAL    CONDITIONS    AND    RESTRAINTS   [Ch.    XXVII 

position  has  been  taken  without  any  apparent  appreeiation  by 
the  court  of  the  complete  departure  from  the  fundamental  prin- 
ciples of  interpreting  writings  which  it  involves/'^ 

92  Ante,  §  123. 


866 


CHAPTER  XXVIII. 
ILLEGAL  AND  IMPOSSIBLE  CONDITIONS. 

§  749.  When  the  condition  is  subsequent  and  impossible  of 
fulfillment  or  illegal:  Under  these  circumstances  the  preced- 
ing estate  is  never  divested.^  But  the  later  breach  of  a  condi- 
tion subsequent  is  not  excused  because  the  fulfillment  of  the 
condition  has  become  no  longer  possible,-  unless  this  impos- 
sibility of  performance  arise  because  of  the  act  of  the  person 
for  whose  benefit  the  performance  was  imposod."' 

§  750.  Where  the  condition  is  precedent  and  illegal  or  im- 
possible:    In  such  a  case  the  future  interest  can  never  vest.^ 

In  Goff  V.  Pense7ihafer,''  there  is  a  suggestion  of  the  recogni- 
tion of  the  rule  laid  down  in  Jarman  on  Wills,^  that  when  the 
condition  precedent  is  impossible,  the  gift  upon  a  condition 
precedent  takes  effect  in  spite  of  the  non-fulfillment  of  the  con- 
dition under  certain  circumstances.  It  should  be  obsem-ed  that 
these  circumstances  according  to  Jarman  are :  First,  Tbat  the 
impossibility  exists  at  the  time  the  future  interest  is  limited, 
and,  second,  that  the  testator  knows  of  the  impossibility.  This 
can  hardly  be  an  exception  of  any  great  practical  importance. 

Jarman  states  as  a  further  exception  to  the  general  rule,  that 
the  fulfillment  of  a  condition  precedent  which  is  illegal  only  be- 
cause it  is  muliim  prohibitum  as  distinguished  from  malum  in 
se,  will  not  prevent  the  future  interest  from  taking  effect.  Curi- 
ously enough,  while  the  several  English  cases  vrhere  this  excep- 
tion has  been  discussed  have  declared  that  a  condition,  illegal 

1  St.  Louis,  J.  &  Ch.  R.  R.  Co.  r.  (111.)  276;  Jennings  v.  Jennings, 
Mathers,  71  111.  592;  Chicago  r.  27  111.  518;  Chicago  v.  Chicago  & 
Chicago  &  W.  Ind.  R.  R.   Co.,  105       W.  Ind.  R.  R.  Co.,  105  111.  73. 

111.  73,  78,  semble;  Gray  v.  Chicago,  *  Jennings    v.    Jennings,    27    111. 

Mil.  &  St.  P.  Ry.,  189  111.  400,  409,  518,   522,    scmble;   Goff    v.    Penscn- 

semble.  hafcr,  190  111.  200,  210. 

2  Sherman    v.   Town   of   .Teffcrson,  5  ]90  111.  200,  210. 

274  111.294.  6  6th   ed.    (Bigclow),   vol.    2,   star 

3  Jones     r.     Bramblet,     1     Scam.       page  852. 

867 


§  751]  ILLEGAL    CONDITIONS    AND    RESTRAINTS    [Ch.    XXVIII 

as  tending  to  cause  the  separation  of  husband  and  wife,  is  merely 
malum  prohibitum,  yet  they  have  strained,  in  order  to  avoid 
the  alleged  exception,  to  construe  the  condition  subsequent, 
rather  than  precedent."  In  Ransdell  v.  Boston,^  our  Supreme 
Court  seems  very  sensibly  to  have  construed  the  condition  tend- 
ing to  separate  husband  and  wife,  as  precedent.  Accordingly, 
it  was  held  that  the  gift  to  the  son,  to  take  effect  upon  the  per- 
formance of  the  condition  {viz:  getting  a  divorce)  could  not 
be  enforced.  No  authority  is  to  be  found  countenancing  any 
distinction  between  conditions  malum  prohihitum  and  malum, 
in  se. 

§  751.  What  conditions  are  illegal — Conditions  in  restraint 
of  marriage:  One  case  in  our  Supreme  Court,  Shackelford  v. 
Hall,^  has  covered  all  of  this  subject  that  has  been  dealt  with 
in  this  jurisdiction.  That  case  affirmed,  by  way  of  dictum,  the 
doctrine  that  conditions  in  total  restraint  of  marriage  were  in 
general  void,  except  in  the  case  of  a  devise  to  the  testator's 
widow. ^"^  The  same  case  also  affirmed  by  way  of  dictum,  that  in 
case  of  partial  restraints  on  marriage  where  the  gift  is  of  per- 
sonalty and  there  is  no  gift  over,  the  condition  is  merely  in 
terrorem  and  may  be  entirely  disregarded.  The  actual  decision 
in  this  case  touched  a  most  unusual  point.  It  was  conceded 
that  a  condition  in  restraint  of  marriage  till  the  devisee  reached 
twenty-one,  was  valid  and  would  be  enforced  when  attached 
to  real  estate.  The  logical  result,  however,  of  this  admission 
was  avoided  because  the  condition  w^as  attached  to  a  gift  to  all 
the  heirs-at-law  of  the  testator,  and  it  was  not  proven  that  the 
complainant,  who  was  attempting  to  take  advantage  of  the  breach 
of  condition,  had  given  to  the  particular  heir,  any  notice  of 
the  condition.  The  case,  therefore,  fell  within  the  rule  of  the 
English  authorities  as  stated  by  Jarman,ii  "that  where  the 
devisee  on  whom  a  condition  affecting  real  estate  is  imposed 
is  also  the  heir-at-law  of  the  testator,  it  is  incumbent  on  any 
person  who  would  take  advantage  of  the  condition,  to  give  him 
notice  thereof;  for  as  he  has,  independently  of  the  will,  a  title 

7  Brown  v.  Peek,  1  Eden  140;  lo  Becker  v.  Becker,  206  111.  53 
Wren  v.  Bradley,  2  DeG.  &  S.  49;  (gift  over  on  widow's  remarrying 
In  re  Moore,  39  Ch.  Div.  116.  valid). 

8  172  111.  439.  ^^  Jarman  on  Wills,  6th  ed.  (Bige- 

9  19  111.   212.  low),  vol.  2,  star  page  853. 

868 


ClI.    XXVIII]    ILLEGAL    AND    LMPOSSIBLE    CONDITIONS 


[§751 


by  descent,  it  is  not  necessarily  to  bo  presumed  from  liis  entry 
on  the  land,  that  ho  is  cognizant  of  the  condition."  '- 


12  The  following  interesting  ac- 
count of  the  way  in  which  the  de- 
cision in  Shackleford  v.  Hall  was 
reached,  is  told  by  John  Dean  Ca- 
ton,  ex-Justice  and  Chief  Justice 
of  the  Supreme  Court  of  Illinois, 
in  a  volume  entitled  ' '  Early  Bench 
and  Bar  of  Illinois,"  at  pages  200 
to  203: 

"The  only  other  case  to  which 
I  shall  refer  is  that  of  Shackle- 
ford  t'.  Hall,  21  [19]  111.  212.  (A 
bad  mistake  was  made  by  the  re- 
porter in  this  case;  the  position 
occupied  by  the  several  parties  is 
misplaced.)  In  this  a  question  was 
presented  which  had  never  before 
been  considered  in  this  country,  and 
very  rarely  in  England. 

"  'The  facts  of  the  case  show 
that  all  of  the  devisees  of  the  estate 
in  remainder,  now  in  controversy, 
were  the  heirs  at  law  of  the  tes- 
tator, and  as  such  heirs  at  law  had 
an  expectation  of  the  estate.  In  the 
absence  of  the  will  each  would  have 
been  entitled  to  his  or  her  re- 
spective proportions  of  it  according 
to  our  statute  of  descent.'  The  tes- 
tator having  devised  the  estate  in 
his  will  precisely  as  the  statuta 
would  have  cast  it  in  the  absence 
of  a  will,  imposed  the  subsequent 
condition  that  if  either  of  his  chil- 
dren should  marry  before  attaining 
the  age  of  twenty-one  years,  he  or 
she  should  forfeit  the  estate  thus  be- 
queathed. Mrs.  Shackleford  did  not 
choose  to  wait  until  she  was  twenty- 
one  years  old,  and  so  was  married 
before  that  time.  Her  brother, 
Henry  H.  Hall,  then  filed  a  bill  to 
declare  the  forfeiture,  which,  upon 
hearing  in  the  Circuit  Court,  was 
dismissed,   and   thenoe   was  brought 


to  the  Supreme  Court.  Upon  the 
arguments  for  the  complainant,  the 
plaintiff  in  error,  the  violation  of 
the  condition  subsequent  was  relied 
upon,  and  really  that  was  about  all 
he  had  to  say  in  the  opening.  For 
the  defense  it  was  claimed  that  the 
condition  was  in  restraint  of  marri- 
age, and  therefore  void;  but  to  this 
a  conclusive  answer  was  given  that 
a  reasonable  restraint  was  not  only 
proper  but  commendable,  and  that 
a  restraint  to  the  age  of  twenty- 
one  years,  or  even  a  greater  age, 
was  not  unreasonable,  and  upon 
this  the  case  was  submitted.  So 
soon  as  we  reached  the  conference 
room  with  the  record,  Breese  broke 
out  and  said :  '  That  brother  is  a 
mean  fellow;  yes,  he's  a  great  ras- 
cal, and  we  must  beat  him  if  pos- 
sible. Now,  Caton,  how  can  it  be 
done?'  I  replied  that  the  law  re- 
ferred to  on  the  argument  was  cer- 
tainly all  in  his  favor,  and  I  didn't 
remember  any  law  to  controvert 
that,  and  Judge  Walker  was  equally 
at  a  loss  to  find  any  way  to  get 
around  it.  I  then  stated  that  dur- 
ing the  argument  there  seemed  to 
be,  as  if  it  were  floating  in  the 
atmosphere,  some  intangible,  und*?- 
fined  idea  that  I  had  seen  some- 
thing somewhere,  some  idea,  derived 
from  something  I  had  read  some 
time,  probably  when  I  was  a  stud 
ent,  when  reading  some  text  book, 
that  might  have  some  bearing  on 
the  case,  but  what  it  was  I  couM 
not  say.  It  was  but  a  vague,  in 
definite  impression,  and  seemed 
rather  like  a  fleeting  dream  than 
a  tangible  idea ;  that  I  felt  confident 
that  I  had  never  seen  a  case  from 
uliiih  that  tlioiiirht  had  arisen,  and 


869 


§752] 


ILLEGAL    CONDITIONS    AND    RESTR^MNTS    [CH.    XXVIII 


§  752.     Conditions  to  induce  husband  and  wife  to  live  apart 
or  to  get  a  divorce:     Such  conditions  are  illegal  in  general. 


that  I  felt  no  assurance  that  there 
was  any  principle  laid  down  in  the 
books,  in  any  way  qualifying  the 
decisions  which  seemed  to  be  so 
directly  in  point,  holding  that  tliis 
condition  subsequent  was  valid. 

* '  Brcese  then  picked  up  the  rec- 
ord from  my  desk,  placed  it  in  my 
hands,  and  said:  'You  t^ike  this 
record  and  hang  on  to  the  tail  of 
that  idea  till  you  follow  it  up  to 
its  head,  until  you  find  some  law  to 
beat  tliis  unnatural  rascal,  who 
would  cheat  his  sister  out  of  her  in- 
heritance just  because  she  wanted 
to  get  married  a  few  months  before 
the  time  fixed  by  the  old  man. ' 

' '  I  took  the  record  home  with  me, 
and  after  I  had  finished  writing 
opinions  in  all  my  other  cases  I 
took  up  this.  I  examined  carefully 
all  the  Digests  in  the  library,  and 
went  through  the  English  reports.  I 
sought  thoroughly,  without  finding 
a  single  word  bearing  in  any  way 
upon  the  case,  still  believing  that 
there  was  something  somewhere  that 
would  throw  some  light  upon  it  on 
one  side  or  the  other.  I  took  down 
Jarman  on  Wills,  and  went  home 
determined  to  read  every  text  book 
in  the  library  on  that  subject  be- 
fore I  would  give  up  the  search, 
and  commenced  reading  at  the  very 
beginning,  and  then  proceeded  very 
deliberately  page  by  page  until  I 
had  got,  perhaps,  two-thirds  of  the 
way  through  the  book,  when  T  read 
a  short  paragraph  which  did  not  at 
first  attract  my  attention  particular- 
ly, and  I  passed  on;  but  before  I 
had  finished  the  next  paragraph  the 
jirevious  one  began  to  impress  itselt 
upon   me,   and    I    looked    back    and 


read  it  again,  and  the  more  I 
studied  it  the  more  I  thought  it 
contained  something  to  the  purpose. 
It  referred  to  several  old  Englisk 
cases,  the  reference  to  which  I  took 
down,  and  made  my  way  to  the 
library  as  soon  as  possible,  impa- 
tient to  see  what  these  references 
would  develop.  In  less  than  an 
hour  I  found  the  law  to  be  as  well 
settled  as  any  other  well  recognized 
principle  of  law,  that  where  a  tes- 
tator devises  an  estate  to  bis  heir 
accompanied  with  a  condition  of 
forfeiture,  a  breach  of  that  condi- 
tion shall  not  work  the  forfeiture, 
unl«ss  its  existence  is  brought  home 
to  the  knowledge  of  the  heir,  and 
this  rule  applies  as  well  to  convey- 
ances by  deed  as  by  devise.  I  still 
think  it  a  little  remarkable  that 
these  eases,  although  few  and  most 
of  them  very  old,  are  not  found  re- 
ferred to  in  any  of  the  Digests 
which  I  have  consulted,  and  that  no 
such  case  appears  ever  to  have 
arisen  in  any  of  the  courts  of  the 
United  States,  or  in  later  times  in 
England,  and  it  is  probable  that 
to-day  this  case  stands  alone  in  the 
American  reports. 

"When  I  read  my  opinion  at  the 
next  conference  Judge  Breese  espe- 
cially manifested  great  satisfac- 
tion at  the  result  of  my  investiga- 
tions, and  walked  across  the  room 
and  patted  me  on  the  back,  saying, 
'Well  done,  my  good  boy,'  and 
seemed  not  less  pleased  at  the  stric- 
tures I  had  expressed  in  the  latter 
part  of  the  opinion  upon  the  con- 
duet  of  the  bard-hearted  brother,  as 
he  termed  him,  and  in  this  expres- 
sion we  all  concurred." 


870 


CH.    XXVIIIJ    ILLEGAL    AND    LMI'U.SSIBLE    CONDITIONS  I  Ij  "•''- 

Tliis  was  tho  diviuin  oi"  Runsdcll  v.  Boston.^"-  In  that  case, 
however,  the  court,  having  regard  to  competent  extrinsic  evi- 
dence (viz:  that  long  before  the  testator's  death,  the  husband 
and  wife  had  lived  apart  and  that  divorce  proceedings  had 
been  pending)  construed  the  will  as  merely  making  "one  pro- 
vision for  him  [the  son]  in  case  they  were  not  divorced,  and 
anotiier  if  they  were."  It  may  well  be  asked  whether  the  dis- 
tinction attempted  in  this  case  was  sound.  The  will  gave  the 
son  only  the  rents  and  profits  for  life  if  he  were  not  divorced, 
and  the  fee  if  he  were.  Is  the  condition  to  be  considered  void 
or  not,  according  to  the  motive  of  the  testator,  so  that  if  he 
makes  a  condition  with  no  motive  to  separate  the  husband  and 
wife,  it  is  valid?  Is  not  the  true  principle,  that  the  condition 
is  void  or  not  according  to  its  nature  and  probable  effect?  If 
so,  it  would  seem  thai  the  condition  involved  in  Ranschll  v. 
Boston,  was  illegal.'^ 

13  172  lU,  439,  445.  Co.   r.  Mather's,  71  111.  592;    Gray 

!♦  See  the   following  cases  where  v.  Chicago,  Mil.  &  St.  P.  Ey.,  189 

the  question  arose  as  to  the  illegal-  111.  400;   Lyman  v.  Suburban  E.  E. 

ity  of  conditions  precedent  and  sub-  Co.,  190  111.  320;  "Wakefield  v.  Van 

sequent:    St.  Louis,  J.  &  Chi.  E.  E.  Tassell,  202  111.  41. 


871 


INDEX 


[  Itererences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of   tliat  section.  ] 

ABUTTING  OWNEES  ON  STREETS,  RIGHTS  OF:     (see  Dedication.) 
upon  the  vacation  of  a  statutory  dedication: 

in  the  absence  of  statute . 287 

the  acts  of  1851,  1865,  and  1874 288 

their  effect  and  constitutionality: 

the  wider  and  narrower  meaning  of  these  acts 289 

these  acts  only  operate  in  their  narrower  meaning,  be- 
cause in  their  wider  meaning  they  would  be  unconsti- 
tutional  and   unjust. 290 

are  these  acts  in  their  wider  meaning  unconstitutional  or 
unjust? 

a  difficulty  about  opening  this  question 291 

such    acts   are   neither    unjust   to    the    dedicator,    nor 

contrary   to   public   policy 292 

their   constitutionality    293 

retroactive  effect  of  these  acts: 

when  their  narrower  meaning  is  adopted. 294 

upon   their  wider   meaning 295 

application  of  these  statutes  in  their  narrower  meaning  to 
the  case  Of  vacations  of  streets  in  canal  trustees '  sub- 
divisions: 

introductory    296 

power    of    canal    commissioners    and    canal    trustees    to 

dedicate   streets 297 

upon   such   dedication   the   fee  passes,  leaving  a  right   to 

enter  in  the  dedicator  in  case  of  vacation 298 

upon  the  vacation  of  a  canal  sub-division  the  fee  in  the 

street  should  go  to  the  abutting  owners 299 

upon  the  vacation  of  a  common  law  dedication 292 


ACCELERATION: 

of  remainders  and   springing  executory   devises 599 

ACCRUED    SHARES : 608 

ACCUMULATIONS : 

of  intermediate   income 207 

other  than  for  charity,  validity  of ....'. 699 

for  charity,  validity  of  ............ '^00 

873 


INDEX 

[  IJeferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of  that  section.  ] 

ADJUDICATION: 

method  of  securiiifj,  that  contingent  remainder  has  been  destroyed  319 

ADOPTED  CHILDREN: 

how  far  included  in  gifts  to  "heirs,"  "issue"  or  "children": 

problem  stated  and  principles  to  be  applied 584 

analysis  of  the  cases  with  reference  to  whether  the  adoption  act 
can  be  construed  as  sufficient  to  give  the  adopted  person  the 

status  of  an  ' '  heir, "  "  child  "   or  "  issue  " 585 

analysis  of  the  cases  with  reference  to  whether  the  language  of 
a  will,  settlement  or  insurance  policy  is  to  be  interpreted  as 
including   all   persons   who   acquire   the   status   of  "heirs," 

"children"  or  "issue,"  no  matter  in  what  manner 586 

the  construction  given  to  the  word  "heirs" 586 

as  to  the  construction  of  the  words  ' '  children  "  or  "  issue  ' ' 

in   a   will,    settlement   or   insurance   policy 587 

the  word  * '  children  "  or  "  issue  "ma  will,  settle- 
ment or  insTirance  policy  executed  while  a  general 
adoption  act  was  in  force  and  by,  or  procured  by, 
the  adopting  parent,  primarily  and  in  the  absence 
of  a  special  context  to  the  contrary,  includes  a  per- 
son who  obtained  by  adoption  the  status  of  a  child  587 
the  word  "children"  or  "issue"  in  a  will,  settle- 
ment or  insurance  policy  executed  whiJc  a  general 
adoption  act  was  in  force,  and  even  though  the  same 
be  executed  or  procured  by  one  other  than  the 
adopting  parent,  primarily  and  in  the  absence  of  a 
special  context  to  the  contrary,  includes  a  person 
who   obtains    by   adoption   the   legal    status    of   a 

' '  child  "   or   "  issue  "    588 

the  foregoing  proposition  is  not  controverted 589 

by  the  exception  in  the  adoption  act  providing 
that  the  adopted  child  "shall  not  take  prop- 
erty expressly  limited  to  the  heirs  of  the  body 
or  bodies  of  the  parents  by  adoption"......   589 

by  the  Massachusetts  A(?t  of  1876  which  expressly 
excludes  the  adopted  child  from  taking  under 
the  designation  of  "children"  in  the  will  or 
settlement  of  one  other  than  the  adopting  par- 
ent, unless  there  is  an  express  intention  that 

such  child  shall  bo  included 590 

by  those  cases  where  the  adopted  child  was  ex- 
cluded because  the  will  or  settlement  was  ex- 
ecuted long  before  there  was  any  adoption  act 
in  force  591 

874 


INDEX 

[  Iteteri'iK  en  urt*  to  sfctlons.     Tlie  letter  n  after  a  Be<tlon  number  directs  atten- 
tion  to   the   footnotes  of   tliiit   seetion.  J 

ADOPTED   CHILDREN— Continiied. 

by  cases  where  the  special  context  of  the  instru- 
ment shows  that  "children"  or  "issue"  meant 
a  class  composed  of  those  who  obtained  their 

status  by  actual  birth  only 592 

it  is  controverted  by  two  cases — one  from  Maine  anil 

the   other   from   Winconsin '^9^ 

in  the  primary  meaning  to  be  placed  upon  "children" 
or  * '  issue  "  in  a  will,  settlement  or  insurance  policy, 
no  distinction  is  to  be  made  between  the  instrument 
executed  or  procured  by  the  adopting  parent  and 

one  executed  or  procured  by  a  stranger •">94 

quaere  whether  the  fact  that  when  the  will,  settle- 
ment or  insurame  policy  is  executed  there  is  no 
general  adoption  act  in  force  will  prevent  the  word 
"children"  from  including  a  person  adopted  under 
a  subsequent  adoption  act 595 

ADMINISTRATOR  WITH  THE  WILL  ANNEXED: 

survival  of  power  to 621 

when  a   foreign 621 

can  he  file  a  bill  for  the  appointment  of  a  trustee  to  exercise  a 
power 621 

ADVERSE  POSSESSION: 

against  reversioners  and  remaindermen : 

where  one  enters  under  a  conveyance  from  life  tenant : 

where  one  enters  under  a  conveyance  purporting  to  trans- 
fer the  life  estate  only 383 

where  one  enters  under  a  conveyance  by  the  life  tenant 

purporting   to   transfer    the    fee 384 

where  life  tenant  disseised  and  remainder  is  vested : 

results  reached  by  the  cases  generally. 385 

what  estate  does  the  disseisor  of  the  life  tenant  have  after 

the  statute  has  run  against  the  life  tenant  only 386 

Illinois    cases    apparently    contra 

where  the   life  estate   is  that  of  a  husband  by  the 

marital  right  in  his  wife  's  fee .   387 

before  the  first  Married  Woman's  separate  prop- 
erty   act    387 

effect  of  the  Illinois  Married  Woman's  separate 

property    act   of    1861 388 

Castner  v.   Walrod 388 

Enos  V.  Buckley   389 

where  the  disseisor  of  the  life  tenant  enters  under  a 
void  guardian's  sale  of  the  reversioner's  interest..   390 

875 


'  INDEX 

[Keferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of  that  section.] 

ADVEESE    POSSESSION— Continued. 

Nelson  v,   Davidson 390 

Field  V.  Peeples 391 

miscellaneous  problems    392 

suppose  the  life  estate  is  released  to  the  vested  re- 
mainderman, or  both  the  life  tenant  and  the  vested 

remainderman  convey  to  a  third  person 392 

it  becomes  important  in  applying  the  statute  of  limita- 
tions to  determine  whether  a  life  estate  is  subject 
merely  to  a  forfeiture  for  a  breach  of  condition,  or 
whether  it  comes  to  an  end  by  express  limitation 

before  the  life  tenant  'a   death 393 

suppose   the  remainderman  is   also   interested  in   the 

life    estate    394 

where  the  remainder  is  contingent: 

the  statute  cannot  begin  to  run  against  the  remainderman 
till  the  event  happens  upon  which  the  remainder  is  to 

vest    395 

where  the  life  tenant  is  barred  by  the  statute  will  a  legal 

contingent  remainder  be  destroyed 396 

where  the  adverse  claimant  has  no  notice,  actual  or  construc- 
tive, of  the  instrument  creating  the  life  estate 397 

of  mortgagor  against  mortgagee 217  n 

AFTER  ACQUIRED  TITLE : 

passing    by    warranty 321-323 

ALIENATION:      (see  Teansfer.) 

ALTERNATIVE   LIMITATIONS:    305,  506 

ANTICIPATION: 

clauses  against,  in  married  women's  settlements 737  n 

APPOINTMENT:     (see  Powers.) 

ASSAULT  AND  BATTERY:      (see  Trespass.) 

right  to  possession  may  be  a  defense  to 270 

ASSETS: 

appointed    property    as 638 

ASSIGNMENT:      (see  Transfer.) 

covenant  against 279 

Dumpor  'a   case 279 

of   heir 's    expectancy 374 

condition  against,  in  lease 254,  715 

876 


INDEX 

[KeferenccH  are  to  soitionH.     The  letter  h  after  a  weitlon  number  directH  atten- 
tion  to  the  I'ootnotea  of   that  section.  ] 

ATTORNMENT: 

most  fully  dealt  with 43,  379 

means  by  which  livery  of  seisin  was  given 451 

not  necessary  when  conveyance  by  bargain  and  sale  or  covenant 

to   stand   seized 452 

necessity  of,  never  generally  recognized  in  Illinois 455 

BARGAIN   AND   SALE: 

as  a  mode  of  conveyance 60,  452 

no   attornment   necessary 75,  452 

what  amounts  to  a 456 

effect  of  Statute  of  Enrollments 60,  456 

must  it  be  under  seal 64,  456 

deeds  in  this  state  take  effect  as 456 

life  estate  may  be  limited  to  the  grantor  by 70,  464 

to  persons  not  in  esse 72,  74,  475 

deed  reciting  a  consideration  may  operate  as 64,  476 

BASE  FEE:     (see  Fee  Simple.) 

BORASTON  'S  CASE,  RULE  IN :    334 

CANAL  COMMISSIONERS  AND  TRUSTEES : 

power    to    dedicate    streets 297 

effect  of  dedication  by 298 

rights  of  abutting  owners  upon  vacation  of  subdivision  made  by .  .  299 

CANAL  LANDS,     (see  Canal  Commissionebs  and  Trustees.) 

CEMETERY  LOT: 

trust  for  perpetual  care  of 660 

CHAMPERTY : 


conveyance  of  a  contingent  remainder   was. 


480 


CHANCERY:     (see  Equity.) 

suit  in,  sufficient  declaration  of  forfeiture 277 

court  of,  may  be  donee  of  a  power 444 

court  of,  has  power  to  appoint  new  trustees 613 

supplies     trustees     for     a     charitable     bequest     when     none     are 
named     697  n 

CHARITY: 

trusts   for,   when   void   for   remoteness 697,  698 

what  is  a  gift  to 697  n 

gift   to,   when   it   fails   for   indefiniteness   or   uncertainty    in   bene- 
ficiary      1 697  H 

trustees  for,  supplied  by  equity  when  none  named 697  n 

accumulations  for,  validity  of 700 

877 


INDEX 

[lleferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion to  the  footnotes  of  that  section.] 

CHATTELS  PEESONAL:     (see  Personal  Property.) 

trespass  to,  defence  of  right  of  possession 270 

(see  Trespass.) 

consumed  in  the  using — future  interests  in 486 

CHATTELS  REAL:      (see  Terms  for  Years,  Personal  Property.) 

future  interests  in . . 485-488 

CHILD  EN  VENTEE  SA  MEEE : 

contingent  remainder  vests   in  when 326 

"CHILDREN":     (see  Classes.) 

construed  to  mean  ' '  heirs  " 414 

conveyance  to,  '  *  born  and  to  be  born  " 452,  476 

meaning  of  ' '  youngest  eliild  " 515,  569 

who  included  in 140 

when  ' '  issue ' '  construed  ' '  children  " 551 

when    ' '  heirs ' '    construed    ' '  children  " 552,  574  n 

when,    includes    ' '  grandchildren  " 574 

when  illegitimates  included  in  gift  to 140 

how  far  adopted  child  included  in  (see  Adopted  Children)  587  et  seq. 

CLASSES,  LIMITATION  TO: 

remainders  to,  whether  vested  or  contingent 

308,  335  et  seq.  353,  523,  524 

a  gift  to  a  class  distinguished  from  a  gift  to  individuals : 

importance    of    this    question 553 

eases  where  the  class  may  increase  or  diminish  even  after  the 

testator 's   death    554 

eases   where   the    class    may    increase    or    diminish    up    to    the 
testator's   death,   but   cannot   increase   afterwards,    or   may 

neither  increase  nor  diminish  afterwards 555 

suppose  the  gift  is  to   the  "children"   of  a  person  deceased 

at  the  time  the  will  is  executed 556 

Volunteers  of  America  v.   Peirce 557 

validity  of: 

where  no  interest  is  limited  preceding  the  gift  to  the  class.  . 

445,  451,  452,  453,  461,  558 

under  the  feudal  land  law 26,  473 

by  devise  after   the  Statute  of  Wills 474 

by  a  conveyance  inter  vivos  which  can  take   effect  as  a 

bargain  and  sale  or  otherwise  by  way  of  use 74,  475 

if  the  conveyance  is  to  "  the  children  of  A,  born 
and  to  be  born ' '  and  A  has  at  the  time  of  the  con- 
veyance no  children,  can  the  after-born  children  of 

A  take    475 

suppose  A  has  at  the  time  of  the  conveyance  a  child 
in   esse    476 

878 


INDEX 

[Kof..rc.n,-..s  are  to  sections      Tho  lotfr  «"";'■;«  Boclion  nu.nb.-r  directs  iitton- 
tlon   to  the  tootiiotes  of   tliat  hcttion.  j 

CLASSES,  LIMITATION  TO— Continued. 

supi-oBC  that  })y  a  deed  the  limitations  are  to  A  for 
life,  remainder  to  the  children  of  A,  "born  and  to 
be  born  "  and  one  child  is  in  esse  at  the  time  of 

'                                                                                       477 
the   conveyance    

by  the  creation  of  equitable  interests  in  favor  of  the  class  478 
where  the  gift  to  the  class  is  a  remainder ^-ji) 

which  vests  in  interest  upon  the  birth  of  a  member  of  tnc 
class  and  where  it  is  expressly  provided  that  afterborn  ^ 
members  of   the  class  are  to   take o59 

Avhere   the   remainder   to   the    class    is   subject   to   a   con- 
dition precedent   in  form,  which  may  not  happen   until   ^ 
after  the  termination  of  the  life  estate o60 

rule  in  Wild's  Case: 

where  a  devise  is  made  to  "A  and  his  children"  and  at  the 
time  of  the  devise  and  of  the  testator's  death  A  has  chil- 

561 

dren    

where  a  devise  is  made  to  "A  and  his  children"  and  A  has  at  _  ^ 

the  time  of  the  devise  no  children »62 

determination  of  classes: 

distinction  between  the  rules  for  the  determination  of  classes 
and  those  which  settled  whether  the  gift  to  the  class  is  con- 
tingent upon  the  members  of  the  class  sm-viving  the  period  ^ 

of  distribution   

rule  when  the  period  of  distribution  is  the  death  of  the  tes-  ^ 

564 

tator     ' . 

rule  when  the  period  of  distribution  is  the  termination  of  a 

565 

li£6  CSt3.tG    

suppose  the  property  to  be  distributed  to  the  class  is  subject 
in  part  to  a  life  estate  and  the  gift  to  the  class  is  m  terms 

immediate   V    i 

rule  when  the  period  of  distribution  comes  because  of  the  hap- 

pening  of  a  contingency  to  a  member  of  the  class o67 

where  there  is  a  contingent  gift  to  the  children  of  A  who 

,    ,         .     /.  567 

reach  twenty-nve   

where  the  gift  to  the  class  is  vested 

where  the  gift  is  to  children  of  A,  to  be  divided  among 

them  when  the  youngest  reaches  twenty-one ^69 

where  the  gift  is  after  a  life  estate  to  such  children  of  ^ 

A  as  reach  twenty-one "^ 

in  case  of  the  statutory  remainder  in  place  of  an  estate  tail.  .   408 
meaning  of  "heirs"  in  a  limitation  to  the  testator's  heirs  or  the  _^^ 

heirs  of  a  living  person  (see  Heirs) L-^l- 

meaning  of  "issue"  in  gifts  to  issue  (see  Issue)   -  •  -^lo-^bo 

adopted  children,  how  far  included  in  gifts  to  -heirs,"      issue 

or  ' •  chUdren ' '  (see  Adopted  Children)   ■'^■^■•'•'^ 

879 


INDEX 

[References  arc  to  sections.     The  letter  «  after  a  section  number  directs  atten- 
tion  to   the  footnotes  of  that  section.] 

CLASSES,  LIMITATION   TO— Continued. 

application  of  rule  of  destructibility  of  contingent  remainders  to 

98-103,  315 

distinguished  from  operation  of  rules  for  the  determination  of 

the  class   104 

rule  against  perpetuities  applied  to  gifts  to 677-681 

postponed  enjoyment  in  gift  to,  valid 568 

COMMON  LAW:     (see  Feudal  System  of  Conveyancing.) 

statutory  adoption  in  Illinois  of  the  common  law  of  England.  . .  .   453 

CONCURRENT   LEASE:     241 

CONDITION,   ESTATES  UPON:     (see  Right  of  Entry  tor   Con- 
dition Broken.) 

CONDITIONS : 

illegal  and  impossible   749-752 

in   restraint  of  marriage 751 

to  induce  divorce 752 

CONDITION  PRECEDENT: 

to  the  taking  effect  of  executory  devises  and  bequests 598 

CONDITIONAL  LIMITATION:     (see  Shifting  Interests.) 

distinguished  from  a  possibility  of  reverter 301 

CONFLICTING      PROVISIONS,      CONFLICT      BETWEEN      THE 
PREMISES  AND  THE  HABENDUM: 

courts  attempt  to  reconcile  apparently  conflicting  clauses 177 

where  an  actual  conflict  occurs 178 

the  rule  as  to  deeds 178 

the  view  of  the  common  law 178 

common  law  rule,  how  far  modified 179 

where  the  premises  provide  for  the  lesser  estate  and 

the  habendum  for  the  larger 179 

where   the   premises   provide   for   the   larger   and   the 

habendum  the  lesser  estate 180 

modification  of  the  common  law  rule  by  statute  180 
tendency,    apart    from    statute,    to    modify    the 

strictness  of  the  common  law  rule 181 

where  devises  are  involved 182 

CONSIDERATION : 

cannot  be  denied  when  recited  in  a  deed  under  seal 62,  456 

of  blood,  in  covenant  to  stand  seized 63,  456 

valuable,  in  a  bargain  and  sale 59,  456 

covenantee  must  be  within,  in  covenant  to  stand  seized 73 

meritorious,   by  appointee  under  a  power 639 

880 


INDEX 

[Keferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to   the   footnotes  of  that  section.  ] 

CONSTITUTIONAL  LAW: 

questions   of,   already   passed    upon    will    be   considered    in   a   suit 

between   other   jjarties 291 

validity  of  acts  in  favor  of  abutting  owners  on  vacation  of  stat- 
utory   dedication    289-294 

validity  of  acts  of  limitation  applicable  to  mortgages 2.'il 

how   far   the   landlord   and   tenant  act,   which   creates   new   causes 

of  forfeiture,  may  be  retroactive 254 

validity  in  general  of  acts  having  retroactive  effect 239 

validity  of  statute  on  entails 293 

CONSTRUCTION  OF   STATUTES:      (for  construction   of  j.articular 
acts  see  Statutes.) 

rule  that  when  a  statute  from  another  jurisdiction  is  enacted  here, 
decisions  of  the  foreign  jurisdiction  construing  it,  are  fol- 
lowed      453  n 

will  not  be  given  retroactive  effect,  when 239,  293,  294,  295 

CONSTRUCTIVE  TRUST:  (see  Trusts.) 

CONTINGENCY: 

question  of  interpretation  where  question  is  as  to  nature  of 141 

contingent  interests  after  terms:    31-33 

by  way  of  use 80,  307 

contingent  future  interests: 

inalienability    48 

CONTINGENT  REMAINDERS: 

defined    and   examples    given ;  .  .27,  96,  309 

in  double  aspect 307,   445 

after  terms  for  years 33,  80,  85,  307,  452 

is  the  contingent  remainder  valid  or  invalid  under  the  feudal  law     28 

distinction  between  vested  and  contingent  remainders .  .29,  79 

by  way  of  use  and  devise 77-79,  85 

trustees  to  preserve 78 

rule  of  destructibility   of ■ 79 

the  continuation  of  the  rule  of  destructibility  of  contingent  re- 
mainders after   springing  and   shifting  future   interests   became 

valid   and    indestructible 97 

application  of  the  rule  of  destructibility  in  the  modern  cases 98 

where  the  remainder  is  limited  to  an  individual 98 

where  the  remainder  is  limited  to  a  class 98 

where,  when  the  life  estate  terminates,  no  member  of  the 

class  has  attained  a  vested  interest 99 

where,  when  the  life  estate  terminates,   one  member   of 
the  class  has  attained  a  vested  interest '.■ 100 

Kales  I>it.  Int.— .-ie  °°l 


INDEX 

[  Keferenoes  are  to  sections.     The  letter  n  ufter  a  section  number  directs  atten- 
tion  to  tbe  footnotes  of   that   section.  ] 

CONTINGENT  REMAINDERS— Continued. 

typical  cases  stated  and  analyzed 100 

state  of  the  English  authorities 101 

where  the  limitations  are  to  "A  for  life,  remain- 
der to  such  children  of  A  as  reach  twenty-one"  101 
where  the  limitations  are  to  "A  for  life,  remain- 
der to  such  children  of  A  as,  either  before  or 

after  A's  death,  reach  twenty-one" 102 

the  rule  of  the  Ma.'ssachusetts  Supreme  Court 103 

where   the  remainder  is  to  a  class  the  operation  of  the  rule 

of  destructibilty  must  be  distinguished  from  the  operation 

of  rules  of  construction  for  the  determination  of  the  class.  .   104 

application  of  the  rule  of  destructibility  where  the  future  interest 

is  limited  on  such  events  that  it  may  take  effect  either  as  a 

remainder  or  as  a  shifting  interest  cutting  short  a  prior  vested 

remainder  in  fee  105 

abolition  of  the  rule  of  destructibility  by  legislation 106 

rule  of  destructibility  in  force  in  Illinois 310 

method  of  operation  of  the  rule; 

by  the  premature  destruction  of  the  life  estate  by  merger.  . .  .   311 

by  forfeiture  of  the  life  estate.  >. 312 

by  the  expiration  of  the  life  estate  in  due  course  before  the 
happening  of  the  event  upon  which  the  contingent  remainder 

is  to  vest    313 

the  partial  destruction  of  a  contingent  remainder  occurs  where 
the  life  estate  terminates  before  the  contingency  happens 

as  to  an  undivided  interest  only 314 

where  the  remainder  is  to  a  class  and  has  vested  in  one  or  more 
meniber.s  of  the  class  before  the  termination  of  the  life  estate, 
tbe  rule  of  destructibility  does  not  apply  to  the  interests  of  the 

other  members  of  the  class 315 

the  rule  of  destructibility  does  not  apply  where  the  interests  are 

equitable   316 

the  rule  of  destructibility  appears  not  to  be  called  into  operation 

when  the  widow,  having  a  life  estate  by  will,  renounces 317 

does  the  rule  of  destructibility  apply  to  the  statutory  remainder 

created  by  the  Statute  on  Entails 318 

methods  of  securing  an  adjudication  that  a  contingent  remainder 

has  been  destroyed  319 

effect  of  rule  of  destructibility  to  prevent  violation  of  Rule  against 

Perpetuities     687-689 

inalienability  of: 

inalienable  by  conveyance  inter  vivos 320 

extinguishment   by  release 320a 

operation  of  tbe  doctrine  of  estoppel  by  covenajits  of  war- 
ranty      321 

882 


INDEIX 

[Ueferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to   tile  footnotes  of   that  section.  ] 

CONTINGENT  REMAINDERS— Continued. 

where  the  remainder  vests  in  the  warrantor 321 

where  the  remainder  vests  in  the  warrantor's  heir 322 

case  stated  and  considered  on  principle 322 

the  state  of  the  cases  in  this  State  makes  the  law- 
uncertain     323 

alienable  by  descent    224 

alienable  by  devise 325 

equitable  contingent  remainders 88 

alienability  of,  accomplished   by   New  York  statutory   defini- 
tion of  a  vested  remainder 357 

jurisdiction  of  equity  to  give  specific  performance  of  transfers 

of    374-377 

when  it  vests  when  remainderman  a  child  en  ventre  sa  mere 326 

problems  of  construction  in  determining  whether  a  remainder  is 

vested  or  contingent 329-356 

New  York  statutory  distinction  between  vested  and 357-368 

descent  of,  from  whom  traced 380-382 

adverse   possession   against 395-396 

to  a  class  and  the  Rule  against  Perpetuities 688 

whether  subject  to  the  Rule  against  Perpetuities 662 

partition  of:     (see  Partition.) 

CONTRACT : 

rescission  of,  for  support  in  a  deed  of  conveyance 221 

creation  of  future  interests  in  chattels  personal  by 485 

subject  to  rule  against  perpetuities 664-665 

CONVERSION : 

of  personal  property  subject  to  future  interests 492-493 

CONVEYANCES:     (see    Construction,    Deeds,     Transfer,    Uses, 
Wills.) 

effect  of  statutory  form  of,  to  t'rcate  springing  and  shifting  future 

interests   457,  458 

to  the  grantor 307,  464 

construction   of — whether   they    take   effect    under   the   statute   of 

uses  or  at  common  law 75,  723 

of  executory  devises — in  equity,  must  show  an  intent   to  transfer 

the  future  interest 481 

by  record    43 

tortious    46 

CONVEY ANCINO,  SYSTEM  OF:     (see  Feudal  System,  Uses.) 

the  feudal  or  common  law 38  et  seq.,  451,  464 

development  under  the  statute  of  uses 54  et  seq.,  452 

883 


INDEX 

(Keferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion to  tile  footnotes  of  that  section.] 

CONVEYANCING,   SYSTEM  OF— Continued. 

in  Illinois   453,  455,  456,  457 

character  of  changes  in 459,  460 

COPARCENERS :     22 

COVENANT: 

against  assignment  or  sub-letting: 

waiver  of  breach  of 279 

valid 715 

of  renewal  of  lease — whether  void  for  remoteness 665 

to  stand  seized: 

a  mode  of  transferring  title 63,  452 

no   attornment   required 452 

what  amounts  to 456 

to  persons  not  in  esse 456 

CORPORATIONS : 

charitable  bequest  to  one  not  yet  formed 698 

on  dissolution  of  charitable,  do  lands  escheat  or  go  to  the  donor.  .  302 

foreign,   exercise   of   power  by 613 

CREDITOR:     (see  Restraints  on  Alienation.) 

power  of,  to  reach  appointed  property 638 

CREDITOR'S  BILL: 

to  reach  equitable  contingent  remainder 376 

CROSS  LIMITATIONS: 

implication  of 600-601 

' '  survivor ' '    construed    ' '  other  " 602-607 

CURTESY: 20 

CY  PRES: 

doctrine  of,  in  gifts  to  charity 697 

DECREE : 

when  it  binds  contingent  remainderman  by  representation 400 

DEDICATION : 

common  law 

right  of  abutting  owner 292 

effect  of    293 

deed    of    abutting    property    passes    fee    to    center    of    the 
way     287,   292 

statutory : 

requirements    of    292 

interest  of  the  dedicator   284,  288 

(see  Conditions.) 

884 


INDEX 

[  KeferenfL'S  are  to  sections.     The  letter  n  after  a  Hection  uuiiibcr  directs  atten- 
tion  to  tile  footnotes  of   tbat  section.  ] 

DEDICATION— Continued. 

how  far  it  is  transferable 285,  287,  293 

condition  attached  to  fee  simple  conveyed  by 228 

rights  of  abutting  owners 287,  299 

(see  Abutting  Owners.) 

by  canal  commissioners  or  trustees,  effect  of  to  pass  fee 298 

DEEDS  OF  CONVEYANCE: 

effect   of  consideration  recited   in 456,  476 

whether  they  take  effect  at  common  law,  or  under  the  statute  of 

uses,  or  by  modern  statute 455,  456,  457,  723 

construction  of,  when  convoying  land  abutting  on  a  highway .  .287,  292 

good  to  limit  an  estate  to  the  grantor 464 

creation  of  shifting  interests  by 443-461 

(see  Shifting  Interests.) 

creation  of  springing  interests  by 466 

(see  Springing  Interests.) 

conveyance  by,  to  a  class 445,  451,  452,  453,  456,  476 

(see  Classes.) 

limiting  an  estate  to  commence  at  the  grantor's  death 463,  466 

creation  by,  of  future  interests  in  chattels  real  and  personal 485 

form  of,  in  use  in  Illinois 456 

forfeiture  on  alienation  by 718,  719 

recording    of    459 

transfer  by : 

of  executory   devise 480 

of   possibility   of   reverter 301  n 

of  dedicator's  right  in  a  way  dedicated  by  statute -287 

(,see   also    Transfer,    Remainders,    Contingent   Remainder, 
Reversions.) 

DESCENDANTS: 

coextensive  in  meaning  with  ' '  issue  " i   575 

DESCENT: 

distinction  between,  and   purchase ' 38 

from  whom  traced 39,  380-382 

Dy  Blackstone  's  Canons,  and  by  statute 40,  409 

of  contingent  remainders 324 

of  executory  devises  and  future  uses 479 

effect  of  sec.  11  of  the  Illinois  statute  on 534,  598 

meaning  of  word  "heirs"  (see  Heirs.) 

statute  on,  governs  amount  when  heirs  take 571 

rule  for,  at  common  law,  of  an  estate  tail 409 

who  take  the  statutory  remainder  in  place  of  the  estate  tail 409 

when  heir  takes  by,  though  ancestor  make  a  will  devising  to  him   723 

885 


INDEX 

[Ueferencee  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of   that  section.] 

DESCRIPTION  OF  PROPERTY  DEVISED: 

where  the  description  of  the  land  devised  is  precisely  and  in  all 
particulars  applicable  to  an  existing  piece  of  land  no  ambiguity 
arises  and,  though  the  extrinsic  evidence  shows  beyond  ques- 
tion a  mistake  in  using  the  description  expressed,  that  descrip- 
tion must  prevail  as  a  matter  of  construction 135 

where,  however,  the  description  of  the  land  devised  is  not  pre- 
cisely and  in  all  particulars  applicable  to  an  existing  piece  of 
land,  the  description  is  not  sensible  with  reference  to  the  ex- 
trinsic circumstances  and  that  part  of  the  description  which,  in 
view  of  admissible  extrinsic  circumstanoes,  appears  to  be  false 
may  be  rejected  under  the  rule  falsa  demonstratio  non  nocet.  .  .  .    136 

the  principal  difficulty  is  in  determining  whether  or  not  the  de- 
scription of  the  land  devised  is  precisely  and  in  all  particulars 
applicable  to  an  existing  piece  of  land 137 

after  part  of  a  description  has  been  rejected  under  the  rule  of 
"falsa  demonstratio"  the  meaning  of  what  is  left  must  be  con- 
strued and  given  effect  according  to  the  usual  principles  of  con- 
struction      138 

DESTRUCTIBILITY  OF  CONTINGENT  REMAINDERS,  RULE  OF: 
(see  Contingent  Remainders.) 

DETERMINABLE   FEE:     (se«   Fee   Simple,   Possibilities    of   Re- 
verter.) 

interest  preceding  a  conditional  limitation  is  not  a 301 

DETERMINATION  OF  CLASSES:     (see  Classes.) 

DEVISE:     (see  Wills;  Executory  Devise.) 

before  Statute  of  Wills 40 

under  Statute  of  Wills 84-86 

what  interests  subject  to: 

right  of  entry   for  condition  broken 240 

contingent  remainders    325 

executory  devises  and  future  uses 479 

possibilities    of    reverter 240 

dne  cannot  devi.se  to  his  heirs 723 

contingent  upon  payment  of  debts 666  et  seq. 

identification    of    devisee 139-140 

description  of  property  devised 135-138 

"DIE  WITHOUT  ISSUE":     (see  I«sue,  Gifts  on  Failure  of.) 

DISCLAIMER: 

oral,  by  tenant  for  years 233 

DISSEISIN :     (see  Adverse  Possession.) 46 

886 


INDEX 

[Kcfcronci'H  are  to  soctionn.     The  h'ttcr  n  ftft.-r  a  B.nti<jn  number  directH  atten- 
tion  to   the   footnott'8  of   tliat   rte<tJon.] 

DISSOLUTION  OF  CHARITABLE  CORPORATION: 

do  lands  cseht'at  upon •''^- 

DI8TRIBUTI0N:     (see  Clashes,  Determination  op.) 

period  of,  when  present  absolute  equitable  interest  is  to  a  claea 
with   a   postponed   enjoyment ^68,  678 

DISTRIBUTIVE  CONSTRUCTION: 

where  yift  to  testator's  heirs  at  law 573 

where  gift  is  after  a  person 's  death ^06 

DIVESTING    CONTINGENCIES:     596-597 

DIVORCE: 

eonditions  to  induce  husband  or  wife  to  get,  or  to  live  apart.  .7.'50,  752 


DOWER: 


30 


none  in  reversion  or  remainder  subject  to  a  freehold '-i^,  'U 

arose  out  of  reversion  subject  to  a  term -'l 

in  a  fee  subject  to  a  conditional  limitation  over 165,  482,  484 

DUMPOR  'S  CASE,  RULE  IX :    -'^ 

EJECTMENT : 

when  may  mortgagee  maintain -17 

whetlier  bringing,  is  proper  mode  of  declaring  a  forfeiture 214 

as  a  remedy  in  case  of  forfeiture  duly  perfected 256 

ELECTION : 

necessary  at  common  law  to  perfect  forfeiture  of  a  term  for  years  278 

ENROLLMENTS,  STATUTE  OF:     (see  Statctes.) 

does  it  apply  in  the  United  States  generally 458 

ENTAILS:     (sec  Fee  Tail.) 

ENTRY : 

not  necessary  to  the  termination  of  a  possibility  of  reverter 300 

how  far  necessary  to  perfect  a  forfeiture 244,  278,  28") 

to  perfect  a  forfeiture  may  be  dispense<l  with  liy  agreement 254 

how  far  suitable  as  a  remedy   to  enforce  a   forfeiture  duly  per- 
fected    •• 257,  277 

(see  FoRFEn'TrRE.) 

action  of  forcible  entry  against  one  making  entry: 

forcibly    258,  259 

peaceably    260 

what  entry  is  peaceable  and  what  forcible 261,  267-269 

peaceable,  when  complete  so  that  one  entering  may  defend  the  use 

of  force  against  the  one  put  out 270 

baxgain  and  sale  of  a  term  witbout 452 

887 


INDEX 

[References  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of  that  section.] 

ENTRY,  EIGHT  OF  FOR  CONDITION  BROKEN:      (see  Condition, 
Forfeiture,  Dedication.) 

distinguished  from  a  possibility  of  reverter 283-299 

not  a  reversionary  right 283 

right  of  dedicator  on  a  statutory  dedication  is  a 284 

how    far    transferable 285 

by  deed  240 

by  devise    240 

by  statute  293 

whether  subject  to  the  rule  against  jjerpetuities 662 

EQUITABLE  CONVERSION:     (see  Conversion.) 

EQUITABLE  DEFENSES:  .       ~ 

of  mortgagor  before  default 217 

barring  of  debt  an,  to  mortgagee 's  legal  title 232 

one  availing  himself  of,  must  do  equity 232 

EQUITABLE  INTERESTS: 

future  interest  in 88 

transfer  of  interests  in 88 

application  of  Rule  in  Shelley's  Case  to 429-433 

contingent   future,   not   destructible 316 

in   personal  property,  valid .•  485 

whether  future  interest  in  personal  property  is  an 487 

subject  to  rule  against  perpetuities ;  .  663 

postponed  enjoyment  of:     (see  Postponed  Enjoyment.) 

whether  valid    732-738 

invalid  when  it'  lasts  too  long 663,  678-680,  737 

do  not  fall  with   spendthrift  trusts 738 

in  gifts  to  classes 568 

invalid  when  they  last  too  long 678-680 

in  trusts  to  accumulate 699-700 

life  estate  subject  to  restraint  on  alienation 731 

springing  and  sliif ting  valid ' 472 

EQUITY: 

jurisdiction  of,  to  set  aside  and  enforce  transfer  of  reversion  and 
remainders: 

introductory 369 

setting   aside   transfers   of   reversions   and   vested   remainders 

which   were    indefeasible 370 

setting   aside   transfers   of   reversions   and   vested   remainders 

which   are   defeasiljle 371 

suppose  the  transfer  of  the  reversion  o'r  vested  remainder  were 

by  a  guardian's  sale ....'..........."..  372 

888 


INDEX 

[Keferences  are  to  sections.     Tlie  letter  n  after  a  Hection  nuniber  dlroctK  atten- 
tion  to  the   footuoteH  of   tliat  section.  ] 

EQUITY— Continued. 

supj)Ose  the   transfer  of  the   reversion   or   remainder   were   by 

execution   sale    373 

specific  performance  of  transfers  of  contingent  remainders  as 

contracts  to  convey  when  the  remainder  vests 374 

specific  performance  of  a  guardian 's  attempted   transfer  of 

the  ward  's  contingent  remainder 375 

equitable  execution  upon  contingent  remainders  by  creditor's 

bill    376 

suppose    the    interest    attempted    to    be    transferred,    while    in 

form  like  a  contingent  remiander,  is  equitable  and  not  legal  377 

conclusion 378 

relief  against   forfeiture   in 282 

how  far  equity  will  enforce  a  forfeiture 232,  277 

when  equity  will  aid  defective  execution 639 

when  it  permits  rescission  of  contract  of  support 221 

specific  performance  of  contracts  in 664-665 

transferability  in: 

of  contingent   remainders 374 

of  executory  devises 481 

of  expectancy  of  an  heir 374 

gives  relief  to  prevent  continuous  trespasses 277 

jurisdiction  of,  to  break  in  upon  trusts  and  give  power  of  sale.  . .  .  647 

supplies  a  trustee  for  charitable  trust  when  none  is  named 697  n 

ESCHEAT: 

in  the  feudal  land  law 3 

are  lands  of  charitable  corporation  on  dissolution,  subject  to 302 

ESTATES:    (see   Fee   Simple,    Fee  Tail,   Life   Estate,   Terms   for 
Years,  Joint  Interests.) 

which  trustee  takes:      (see  Trustee.) 

on  condition:     (see  Rights  of  Entry  for  Coxditiox  Broken.) 

at  will:     (see  Tenancy  at  Will.) 

in  personal  estate:     (see  Personal  Property.) 

limitation   of,    by    devise 85 

limitation  of,  by  way  of  use .70-81 

by    way    of    trust 88 

less  than  freehold,  conveyances  of 45 

for  life   by  marital   right 20 

by   entirety 22,   213 

nature    of    question    of    interpretation    where    question    is    as    to, 

created     141 

limitation   of,  to   the   grantor 70,  464 

ESTOPPEL:      (see  Warranty.) 

as  a  defence  to  forfeiture 281 

889 


INDEX 

[  Hofcronoes  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  the   footnotes  of   that  section.  ] 

ESTOPPEL— Continued, 
transfer  by : 

of  contingent  remainders 321-323 

of   executory    devises 480 

by   lease   and   release 480  n 

as  a  means  of  passing  an  after-acquired  title 321  ct  scq. 

ESTOPPEL  AND  ELECTION: 

whether  any,  when  Rule  against  Peri>etuities  violated 704 

EVIDENCE:     (see  Interpretation  of  Writings.) 

EXECUTION  SALE : 

what  interests  subject  to: 

vested   remainders    308,  327 

contingent  remaindcr.s  309,  376 

reversions    304 

executory  devises  and  future  uses 479 

equitable   728 

equitable    execution    376 

EXECUTORS: 

failure  to  qualify 620 

renunciation  of    619 

power  of  sale  in: 

existence    of    643-646 

survival   of    618-633 

right  to  exercise  by  foreign  executor,  whether  natural  person 

or  corporation    613 

joint  interests  in    212 

EXECUTORY  DEVISES: 

defined    85,  442 

in    general    valid S5,  467 

the    authorities    467 

three  cases  contra    468 

Andrews  v.  Andrews 468 

Ewing  V.  Barnes  and  Silva  v.  Hopkinson 469 

Ewing  V.  Barnes  and  Silva  v.  Hopkinson  now  overruled.  .  470 
the  recent  cases  have  also  disposed  of  the  fallacy  that  because 
some  shifting  interests  were  void  for  "repugnancy"  all  must 

be  void    471 

gifts  over  by  way  of  forfeiture  on  alienation  and  upon  in- 
testacy     717-72.5 

(see  Restraints  on  Alienation.) 

when  an  executory  de\'i8e  becomes  a  vested  interest 482 

890 


INDEX 

[Refercnros  arc  to  sections.     The  letter  n  aftor  a  so.tion   niimb-^r  fiirrna  atten- 
tion  to  the  footnotes  of   tliat   heitioii.J 

EXECUTORY  DEVISES — Continued, 
alienation  of  executory  devises: 

by  descent,  devise,  release,  and  sale  on  execution 479 

by  a  conveyance  to  a  stranger  inter  vivos: 

validity  at  law '^^^ 

AQ'l 

in   equity    ^°^ 

effect  on  accumulations,  of  failure  of  the  future  interest  for 

remoteness     'J^^ 

acceleration  of  springing  executory  devises i>99 

indestructibility  of  executory  devises 483 

subject  to  the  Rule  against  Perpetuities 662 

exccutorv   devisee  cannot   have   waste  against   the   one  in   posses- 
sion   ; ^99,494 

divesting  contingencies  and  conditions  precedent  to  taking  effect 

of  gift  over    .....396-598 

interests  are  not  divested  unless  the  event  upon  which  the  divesting 

is  to  occur  strictly  happens ^^6 

effect  of  the  failure  of  a  gift  over  upon  the  preceding  interest 597 

effect  upon  an  executory'  devise  of  the  failure  of  the  prior  gift 598 

EXECUTORY  INTERESTS: 

contingent   reinainders  are,   when   indestructible 662 

those  are,  which  are  neither  vested  nor  contingent 482 

whether  future  interests  in  personal  property  are 487 

who  is  entitled  to  intermediate  income 207  et  seq. 

Rule  in  Shelley's  Case  does  not  apply  to 89,  429  et  seq. 

in  a  gift  to  classes — application  of  Rule  against  Perpetuities.  .681 -680 

transmissible  by  descent  and  devise 479-481 

descent  of,  from  whom  traced 380-382 

held  vested,  when    '*°- 

EXECUTORY  TRUST: 

application  of  Rule  in  Shelley 's  Case  to 430-433 

EXTRINSIC  EVIDENCE:    (see  Interpretation  of  Writing.^.) 

EXPECTANCY: 
of  an  heir : 

may  be  released  to  ancestor 374 

assignable  in  equity  to  a  stranger 374 

FEE  SIMPLE: 

l>aso  or  determinable  fee: 

whether  mortgagee  has 230 

distinguished  from  interest  cut  short  by  a  conditional  limita- 


tion 


301 


891 


•   INDEX 

[References  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion to  the  footnotes  of  that  section.] 

FEE  SIMPLE— Continued. 

may  be  subject  to  a  condition  subsequent 216,  217 

condition  attached  to,  arising  by  operation  of  law 228-232 

"who  may  take  advantage  of  a  breach  of  condition  attached  to.  . .  .   240 

effect  of  breach  of  condition  attached  to 243 

to  center  of  highway  passes  by  deed  of  the  abutting  owner. . .  .287,  292 

cut  down  to  an  estate  tail,  when 469 

passes  upon  dedication  by  canal  commissioners  or  trustees 298 

passes  upon  a  statutory  dedication 284 

subject  to  be  cut  short — dower  in 465 

mortgagee  has  a  217 

postponed  enjoyment  of  equitable 732-738 

resulting  estate  always  a 465 

application  of  the  Eule  in  Shelley's  Case  to  confer  a  (see  Shel- 
ley's Case,  Eule  in)  : 

words  necessary  to  create,  under  feudal  land  law 11 

how  created  at  common  law  and  under  the  Statute  of  Uses  and 

Wills    70,   153-155 

how  created  under  R.  S.  1874,  ch.  30,  sec.  13: 

the    statute     156 

cases  where  an  estate  less  than  a  fee  is  limited  by  express  words  157 
cases  where  the  primary  effect  of  the  conveyance  to  create  a 
fee  was  confirmed  by  the  use  of  the  common  law  words  of 

limitation,  i.  e.,  '  *  heirs  " 158 

cases  where  the  primary  effect  of  the  transfer  to  create  a  fee 
was   confirmed    by   the   use    of   expressions   other   than   the 

common  law  words   of  limitation 159 

cases  where  there  is  a  transfer  to  A  simpliciter  and  no  context 
showing  an  intent  that  A  shall  or  shall  not  take  the  fee,  but 

where  under  the  statute  he  nevertheless  does  so 160 

cases  where  the  only  special  context  tends  to  indicate  that  a  less 
estate  than  a  fee  was  intended,  but  where  this  context  is 
deemed  to  be  insufficient  to  overcome  the  primary  statutory 

meaning     161 

transfer  to  A  simpliciter  followed  by  a  gift  "at  his  decease"  162 
transfer  to  A  simpliciter  followed  by  a  gift  ' '  in  case  of  his 
death"  or  some  other  expression  treating  A's  death  as  a 

contingent  event 163 

effect  of  gifts  over  164 

where  the  limitations  are  to  A  simpliciter  with  a  gift  or 
gifts  over  on  A's  death  and  on  one  or  more  collateral 
contingencies,   which,   however,   do   not   exhaust   all   the 

possibilities     164 

where  the  limitations  are  to  A  simpliciter,  with  gifts  over 
on  several  contingencies  which  exhaust  all  the  possibili- 
ties     165 

892 


INDEX 

[ReforoncoB  arr  to  spctlons.     The  letter  n  after  a  section  number  dirertH  atten- 
*■  tlon  to  the  footnotes  of  that  section.] 

FEE  SIMPLE— Continued. 

where  the  limitations  are  to  X  for  life,  remainder  to  A 
simpliciter,  -with  a  gift  or  gifts  over  on  A's  death  and 
on   one   or  more   collateral   contingencies  which   do   not 

exhaust  all  the  possibilities If'S 

where  the  limitations  are  to  X  for  life,  remainder  to  A 
simpliciter,    with    gifts    over    on    several    contingencies 

which  exhaust  all  the  possibilities 167 

limitations  to  A  simpliciter  with  power  in  A  to  dispose  of  an 
absolute  interest  in  the  property,  and  upon  failure  to  do  so, 

over  to  B   •.••.■■   ^^^ 

miscellaneous   contexts   only   superficially   related— limitations 

to  A  and  his  children  and  their  children 169 

limitation  to   A  or  his  heirs 170-176 

conflicting    provisions— conflict    between    the    premises    and    the 

habendum     ^ 

•estate   which   a  trustee   takes 183-193 

forfeiture    and   alienation   of ii.~  i~v 

restraints  on  alienation  of 727-729 

equitable : 

subject  to  restraints  on  alienation 739-741 

subiect  to  a  condition  subsequent 12 

-I  Q 

determinable   or  base   fee 

,       ^     „    «„„  307 

fee  on  a  fee 

rule  that  there  can  be  no  remainder  in  fee  after  a  vested  remainder 
in  fee    445,  446,  448,  453,  455,  461 

fee  on  a  fee  by  deed: 

443 
introduction     

the  Illinois  authorities  are  divided 444 

cases  in  support  of  the  validity  of  shifting  interests  by 


deed 


cases  against  the  validity  of  shifting  future  interests  by 
deed     


444 


445 


446 
contentions    

of  the  cases  which  seem  to  hold  shifting  interests  invalid.   446 

stated    •■  4-18 

447 
repugnancy     

the  common  law  rule  that   a   fee  cannot  be  limited 

after    a    fee 448 

of  cases  which  hold  the  shifting  interest  by  deed  valid.  .  .   449 

reasoning  of  both  lines  of  cases  valid  so  far  as  it  goes 450 

450 
general  view    

the  common  law  system  of  conveyancing ■lal 

development  under  the   Statute  of  Uses 4o2 

893 


INDEX 

[  Ucferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to   the  footnotes  of   tliat  section.] 

FEE  SIMPLE— Continued. 

the  principles  of  the  common  law  and  of  the  system  of  con- 
veyancing which  developed  under  the  Statute  of  Uses 
exist  side  by  side  as  part  of  the  law  of  Illinois  today. .  453 

the   special   issue 454 

shifting  limitations  by  deed  may  be  supported  here  by  force  of 

the  Statute  of  Uses 455 

conveyances  by  deed  in  Illinois  have  never  operated  under 

the  common  law 455 

conveyances  by  deed  in  Illinois  have  always  taken  effect 

under  the  Statute  of  Uses 456 

the  fact  that  our  deeds  in  Illinois  may  operate  under  the 
acts  of  1827  and  1872  cannot  interfere  with  the  validity 

of  shifting  interests  created  by  them 457 

shifting  interests  by  deed  may  bo  supported  in  Illinois  under 

the  acts  of  1827  and  1872 458 

the  tendency  to  hold  shifting  future  interests  by  deed  invalid 

is  reactionary ,  459 

character  of  the  changes  in  the  law  of  conveyances 459 

the  attitude  of  our  Supreme  Court 460 

the  weight  of  authority  in  this  State  is  in  favor  of  the  validity 

of   shifting  interests  by  deed 461 

trend  of  the  recent  Illinois  authorities 462 

springing  future  interests  by  deed: 

conveyances  to  take  effect  at  the  grantor 's  death  valid 463 

the  future  interest,  void  at  common  law,  sustained  on  two 

theories     464 

iv'hich  of  these  two  views  is  correct 465 

conclusion 466 

FEE  TAIL: 

history   of    14-19 

modern    disentailing    conveyances 19 

modern  statutes  dealing  with  estates  tail 19 

peculiar  situation  in  Iowa    19 

tenant  in,  after  possibility  of  issue  extinct 20 

barred  by  fines  and  recoveries 17 

barred  by  warranty 17 

by  way  of   use 70 

by  rule  in  Shelley 's  case 565 

by  rule  in  Wild 's  case 561,  562 

created  by  a  gift  over  on  an  indefinite  failure  of  issue.  .469,  544,  549 

rule  of  descent   in 409 

implication  of  cross  remainders,  where  limitations  are  to  daughters 

as  tenants  in  common  in  tail 600 

forfeiture   upon   alienation    of 716 

894 


INDEX 

r  Kea-rences  uio  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to   the  footnotes  of   tliat  section.] 

FEE  TAIL — Continued, 
creation  of: 

the  Statute  on  Entails 1^* 

words  sufficient  under  the  Statute  De  Donis  to  create  an  estate 

tail   195 

in  conveyances  inter  vivos 195 

by   devise    ^^^ 

in  several  cases  where  the  context  contained  the  phrase 
' '  heirs  of  the  body ' '  an  estate  tail  was  upon  the  whole 

context  held  not  to  have  been  created 197 

suppose  the  words  used  are  not  sufficient  under  the  Statute 
De  Donis  to  create  an  estate  tail,  but  are  sufficient  to  express 

an  intention  to  create  such  an  estate 198 

suppose  personal  property  is  limited  with  such  expressions,  as, 
if   used   in   a   conveyance   or   devise   of   real   estate,   would 

•1  199 

create  an  estate  tail 

suppose  the  limitations  of  personal  property   are  to  "A 
and  the  heirs  of  his  body,"  or  to  "  A  for  life  and  then 

to  the  heirs  of  his  body " 199 

suppose  the  limitations  of  personal  property  are  to  "A 
and  his  issue "  or  to  "A  and  the  issue  of  his  body " .  .   200 
the  statutory  estates  in  place  of  estate  tail : 

statutes    

their   operation    *"^ 

the   statutory   remainder '^O* 

prior  to  the  birth  of  issue  of  the  donee  in  tail 318,  404 

after  the  birth  of  issue  of  the  donee  in  tail 40.> 

three  views  as  to  the  character  of  the  remainder  and 

the  persons  entitled  to  it 359,  40o 

state  of  the  decisions  of  the  Illinois  Supreme  Court.  .  406 
assuming   that   the   statutory   remainder   is   limited   to   "chil- 
dren"     • -^"^^ 

can  the  remainderman  be  restricted  to  a  special  class  of 

children  in  the  case  of  an  estate  tail  special 407 

at  what  period  of  time  does  the  class  close 408 

if  the  language  of  the  statute  were  taken  literally,  who  pre- 
cisely would  be  entitled  to  the  remainder 409 

effect  of  feoffee  to  uses  having 66 

forfeiture   on    alienation    of '1° 

limitation  after  and  Rule  against  Perpetuities 696 

FEOFFMENT:      (see   Livery   of  Seisin,   Feudal  System   of  Land 
Law.) 

FEUDAL  SYSTEM  OF  LAND  LAW : 

in  general   l"^^'  ^^^l 

implied  r-ondition  upon  which  feudal  tenant  held '-3o 

895 


INDEX 

[  Keferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of  that  section.  ] 

FEUDAL  SYSTEM  OF  LAND  LAW— Continued. 

doctrine  of,  had  no  application  to  terms  for  year 235 

feoffor  cannot  limit  an  estate  to  himself  under 307 

required    the    destructibility    of    certain    contingent   future    inter- 
ests     28,  77,  97,  310  et  seq. 

forbade  fees  on  fees  or  shifting  future  interests 26,  448,  449 

springing  interests  invalid  under 26 

in  Illinois: 

feudal  mode  of  conveyance  in  force  but  not  in  use 453 

feudal  rules  of  conveyancing  regarding  the  creation  of  future 

interests  in  force  in 453 

feudal  rules  regarding  remainders  survive  in,  only  as  an  aca- 
demic possibility   455 

law  of  remainders  part  of 25,  29 

vested  remainders  under 29 

contingent   remainders  under 27-29,   96-106 

place  of  terms  for  years  in 21,  235 

abrogation  of,  after  the  Statutes  of  Uses  and  Wills 

83,  307,  453,  458,  459 

FINES :    44 

as  a  means  of  barring  estate  tail 17 

FORCIBLE : 

what  entry  is  261,  267-269 

FORCIBLE  ENTRY  AND  DETAINER: 

whether  action  of,  sufficient  declaration  of  forfeiture 245 

action  of,  as  a  remedy  for  forfeiture  duly  perfected 256 

action  of,  by  a  tenant  ejected  from  leased  premises: 

introductory   257 

where  the  entry  is  forcible: 

before   1872    258 

since    1872    259 

where  the  entry  is  peaceable 260 

what  entry  is  peaceable  and  what  forcible 261 

is  right  of  possession  involved  in  action  of 260 

is  title  ever  involved  in  action  of 269  n 

statutes  of,  construction  of: 

Illinois  act  of  1827 258,  266 

Illinois  act  of  1872 259 

of  English  acts 258,  266,  270 

of  Massachusetts  acts 259 

demand  for  possession  under  statutes  of 245  n 

FORFEITURE:     (see  Conditions,  Construction.) 
what  estates  may  be  subject  to: 

fee  simple    216,  228 

896 


INDEX 

I  Kficrciiccs  ait'  to  scctiouH.     The  letter  n  after  a  section  nuiul>er  dlroctH  atten- 
tion  to  the   footnotes  of   that  section.  ] 

FORFEITURE— Continued. 

mortgages  217,  229-232 

terms  for  years 218,  233-239 

not  subject  to,  for  breach  of  stipulation  or  covenant  unless 

there  is  an  express  condition 234-236 

tenancy  at  sufferance 233  n 

mode  of  perfecting  a  forfeiture: 

of  freehold  estates 244 

of  estates  less  than  freehold: 

the  common  law  mode  of  forfeiture 245,  277,  28;') 

effect  of  Illinois  statutes  upon  the  common  law  modes  of 
forfeiture : 

in  ease  of  default  in  payment  of  rent: 

act   of   1827 246 

sec.  2  of  tlie  act  of  1865,  appearing  also  as  sec. 

9  of  the  act  of  1873 247 

sec.  4  of  the  act  of  1865 248 

sec.  8  of  the  act  of  1873 249 

how  far  has  a  forfeiture  by  a  common  law  de- 
mand for  rent  been  abolished  by  the  acts  of 

1827,  1865  and  1873 250 

for  cause  other  than  default  in  the  payment  of  rent: 
sec.  2  of  the  act  of  1865,  appearing  afterwards 

as  sec.  9  of  the  act  of  1873 251 

how  demand  may  be  made  or  notice  served 252 

retroactive  effect  of  the  acts  of  1827,  1865  and  1873  253 
mode  of  perfecting  a  forfeiture  as  altered  by  the  agree- 
ment of  the  parties: 

provisions  for  the  benefit  of  the  landlord 254 

provisions  for  the  protection  of  the  tenant 255 

remedy  in  case  of  forfeiture  duly  perfected: 

by  ejectment  or  forcible  detainer  suit 256 

actual  entry  upon  the  land: 

action  of  forcible  entry  and   detainer  for  possession   by 
the  one  put  out: 

introductory    255 

where  the  entry  is  forcible: 

before   1872    258 

since    1872    259 

where  the  entry  is  peaceable. 260 

what  entry  is  peaceable  and  what  forcible 261 

how  far  may  the  one  put   out  sue   in  trespass  q.  c.  f., 
assault  and  battery  and  d.  b.  a.: 

three  possible  views 262 

the  Illinois  cases: 

first  indications   263 


Kiil(>sT''>it.  Int.— .'7 


897 


INDEX 

[IJeferences  are  to  sections.     The -letter  n  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of  that  section.] 

FORFEITURE— Continued. 

Reeder  v.  Purdy: 

its  real  scope 264 

subsequent    cases:      Fort    Dearborn    Lodge 

V.   Klein    265 

the  ground  of  the  rule  laid  down  in  Reeder 

V.  Purdy   266 

distinction  between  forcible  and  peaceable  entry  267 

the  vice  of  Reeder  v.  Purdy 268 

the  virtue  of  Fort  Dearborn  Lodge  v.  Klein  269 

some   further   questions 270 

view  of  the  Appellate  Court  in  the  first  district: 

before  the  Klein  case 271 

since  the  Klein  case: 
in  trespass  q.  c.  /. : 

Judge    Gary 's    view 272 

sustained  by  other  judges 273 

contrary    to    the    rule    of    the    Su- 
preme Court 274 

in  trespass  for  assault  and  battery  and 

d.    b.   a 275 

defence  of  leave  and  license 276 

how  far  equity  will  enforce  a  forfeiture 277 

relief  against  forfeiture: 
at  law: 

several  modes  of  relief 278 

license    279 

waiver — release  of  causes  of  forfeiture 280 

estoppel  281 

in  equity  282 

by  holder  of  concurrent  lease 241 

breach  of  condition  makes  estate  voidable  not  void 243 

rigors  of,  tempered  by  the  common  law 243,  278 

for  breach  of  covenant  not  to  assign 279 

FORFEITURE  ON  ALIENATION:    (see  Restraints  on  Alienation.) 

public  policy  behind  invalidity  of  gifts  over  by  way  of 723 

distinguished  from  restraints  on  alienation 711 

upon  the  alienation  of  a  fee  simple  or  absolute  interest: 

generally    712-713 

in  a  particular  manner: 

construction  of  clauses  of 717 

by  deed  or  will 445,  461,  717,  718 

on  intestacy    445,  461,  720-723 

defined  and  result  of  authorities  stated 720 

898 


INDEX 

[Kpferonrps  arp  to  Hpctions.     The  Ipttor  n  aftpr  a  sprtion  numhpr  dlrorts  attpn 
tion   to   thp   footnotes  of   that   section.  ] 

FORFEITURE  ON  ALIENATION— Continued. 

excuse   for   reconsidering   the   authorities   upon   prin- 
ciple     721 

reasons  for  holding  void  gifts  over  on  intestacy.  .447,  722 

of  personal   property 722 

of   real   estate 723 

valid  in  New  York  by  statute 723 

gifts  over  upon  a  definite  failure  of  issue  and  intestacy: 

state  of  the  authorities 725 

upon  principle  the  gift  over  is  valid 724 

upon  the  alienation  of  a  fee  tail 716 

upon  the  alienation  of  a  life  estate 714 

upon  the  alienation  of  a  term  of  years 715 

■r 
FRANKALMOIGNE:      (see  Tenure.) 

FRAUD : 

appointment  in  fraud  of  povrers 612 

FREEHOLD    ESTATES:     (see    Estates,    Fee    Simple,    Fee    Tail, 

Life  Estate)    11-20    70 

entry  necessary  to  perfect  forfeiture  of 278 

what  pass  by  livery  and  what  by  grant 451 

how  far  transferable  by  livery  in  Illinois .   453 

FUTURE  INTERESTS:  (see  Possibilities  of  Reverter,  Rights  of 
Entry  for  Condition  Broken,  Reversions,  Remainders,  Contin- 
gent Remainders,  Springing  and  Shifting  Interests,  Future  In- 
terests after  a  Term,  Personal  Property,  Terms  for  Years.) 

after  terms  for  years 31-33^  80,  85 

GARNISHMENT : 

whether  cestui 's  intere.st  is  subject  to 728 

GESTATION: 

periods  of,  and  application  of  rule  against  perpetuities 655 

GIFTS  OVER: 

in  default  of  appointment 332    634-637    726 

effect  of,  on  estate  created  in  first  taker 164-167 

effect  of,  on  failure  of  first  taker  to  dispose  of  property 168 

how  far  they  give  rise  to  a  contingency  of  survivorship.  .  .245  et  seq. 

ignored  in  several  eases  as  if  void 596 

effect  of,  on  vesting  of  legacies 519-521 

on  failure  to  alienate 717-726 

on   intestacy    720-725 

when  intestacy  occurs  before  testator 's  death 598 

899 


INDEX 

[Keterences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion to  the  footnotes  of  that  section.  ] 

GIFTS  OVER— CJontinued. 

on  intestacy  and  failure  of  issue 724  et  seq. 

effect  on  of  failure  of  preceding  interest 597-598 

effect   on   subsequent   limitations   when   prior   limitations   fail   for 

remoteness    710 

failure  of,  for  remoteness — effect  on  prior  limitations 705  et  seq. 

upon  the  * '  death "   of   a  previous   taker   simpliciter   or   ' '  without 
children, "  or  "  without   issue, "  or  "  without  heirs ' ' : 
to  what  period  is  "death"  referred: 

limitations  by  will  to  A  simpliciter  followed  by  a  gift  ' '  at 

his  decease "    529 

limitations  by  will  to  A  simpliciter  followed  by  a  gift  ' '  in 
case  of  his  death,"  or  some  other  expression  treating 

A 's  death  as  a  contingent  event 5;50 

limitations  by  will  to  A  simpliciter  with  a  gift  or  gifts 
over  on  A 's  death  and  one  or  more  collateral  contin- 
gencies     531 

limitations  by  will  to  X  for  life,  then  to  A  simpliciter, 
with  a  gift  or  gifts  over  on  A 's  death  and  one  or  more 

collateral  contingencies    ; 532 

the  rule  of  the  English  cases 532 

the  course  of  decision  in  Illinois  is  somewhat  in  doubt  533 
some  results  reached  by  our  Supreme  Court  are  sup- 
ported by   definite   special  contexts 534 

limitations  to  X  for  life,  then  to  A  for  life,  and  in  case 
of  A's  death  and  on  the  happening  of  a  collateral  con- 
tingency over  535 

where  property  is  vested  in  trustees  who  are  directed  to 
distribute  at  a  certain  time,  so  that  the  trust  t^en 
determines  and  the  legatees,  who  are  to  take  upon  the 
death  of  ])rior  legatees,  are  to  do  so  through  the  medium 

of  a  conveyance  from  the  same  trustees 53G 

limitations  by  will  to  A  at  a  period  of  distribution  after 
the  testator's  death,  with  a  gift  over  if  A  dies  before 

the  period  of  distribution 537 

meaning  of  "without"  in  gifts  over  if  first  taker  dies  without 
children : 

two  possible  meanings  of  the  word  "without" 538 

if  there  is  no  independent  gift  to  the  children  of  the  first 
taker,  "without"   means   primarily   "without  children 

surviving "    539 

when  there  is  an  independent  gift  to  the  first  taker 's 
children  or  issue,  so  that  a  ,(,'hild  upon  birth  acquires  a 
vested  interest,  * '  without ' '  may  mean  '  *  without  ever 
having  had "    540 

900 


INDEX 

[  Kefercnt't'S  arc  to  soctlonH.     Tlie  U-tter  n  after  a  Hci-tion  number  directH  atten- 
tion  to   the   footnott'H  of   that   section.  J 

GIFTS  OVER— Continued. 

where   there   is   an    independent   {jif  t   to   the   first   taker 's 

children  contingent  upon  their  surviving  the  first  taker, 

a  gift  over  if  the  first  taker  "die   without  children" 

means  die  without  children  surviving  the  first  taker.  ...    541 

moaning  of  "without  issue"  in  gifts  over  if  first  taker  dies 

without  issue : 

there   are    three   possible   meanings    to    the    phrase    ' '  die 

without  issue "     542 

whore  there  is  an  independent  gift  to  the  issue  of  the  first 
taker  which  vests  an  interest  in  such  issue  as  soon  as 

born    543 

suppose,    however,    there    is   no    independent   gift   to    the 

issue  of  the  first  taker 544 

results  of  the  English  cases  and  effect  of  the  Wills 

Act 544 

the  position  taken  by  the  Illinois  Supreme  Court.  .  .  .   545 

in  general   545 

Stafford  v.  Road  and  Kendall  v.  Taylor 546 

O  'Hare  v.  Johnston 547 

whether  an  indefinite  failure  of  issue  is  meant  where  "die 
without  issue"  introduces  a  remainder  after  an  estate 

tail     548 

results  which  would  follow  if  our  Supreme  Court  held  a 
future  interest  other  than  a  remainder  after  an  ex- 
pressly created  estate  tail  to  have  been  limited  upon  an 

indefinite  failure  of  issue 549 

Ewing  V.  Barnes   550 

' '  issue  ' '   in   gifts   over   if   first   taker   dies   * '  without   issue, ' ' 

when   construed    ' '  children  " 551 

"heirs"  in  gift  over  if  first  taker  dies  "without  heirs,"  how 
construed     552 

' '  GRANDCHILDREN  ' ' : 

who  included  in  the  term 574 

GRANT  AND  ATTORNMENT:      (see  Attornment.) 

a  mode   of   conveyance 43,  451 

how  far  used  or  in  force  in  Illinois 453,  455 

GUARDIAN'S  SALE: 

jurisdiction  of  equity  over,  to  sot  aside  or  enforce 372,  375 

entry  under  void  guardian's  sale  of  reversion: 

when  possession  adverse 390-391 

HABENDUM: 

conflict   botwoon   premises  and    (see   Coxtlictixg  PRonsiONS.) 

901 


INDEX 

[  Kcferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to   the  footnotes  of  that  section.  ] 

HEIRS: 

meaning  of: 

in   limitations  to  grantor  and  his  heirs 305 

in  gift  over  if  first  taker  dies  "without  heirs" 552 

as  a  word  of  purchase  or  as  a  word  of  limitation 422 

to  include  adopted  child 586 

in   a  limitation   to  the   testator 's  heirs   or   heirs   of   a   living 
person : 

primary  meaning  of  ' '  heirs  " 140,  571 

gift  to  the  testator 's  heirs  where  a  preceding  interest  is 
expressly  limited  to  one  who  is  an  heir  or  the  sole  heir 

of  the  testator  at  his  death 572 

whether  a  surviving  spouse  is  included  in  a  gift  to  the 

deceased  spouse 's  heirs-at-law 573 

where   no   preceding  interest   is   limited — distributive 

construction    573 

where  a  preceding  interest  for  life  is  limited  to  the 
spouse  with  a  gift  over  to  the  testator's  heirs.  .  .  .   574 

when  construed  to  mean  ' '  children  " 574  n 

of  devisor  take  by  descent  from  devisor,  when 723 

expectancy  of,  how  far  assignable 374 

HIGHWAY : 

fee  to  middle  passes  by  deed  when 287,  292 

HOMESTEAD: 

legal    life    interest    in,    might    be    made    subject    to    restraint    on 
alienation   730  n 

HOTCHPOT  CLAUSE:      (see  Powers.) 

HUSBAND  AND  WIFE: 

exercise  of  power  by  wife  for  husband  not  aided  in  equity  when 

defective    639 

condition  to  induce,  to  live  apart  or  get  a  divorce 750,  752 

estate  by  entirety  in 213 

dower:      (see  DowER.) 

IDENTIFICATION: 

of  devisee   139 

ILLEGAL  AND  IMPOSSIBLE  CONDITIONS: 

when  the  condition  is  subsequent  and  impossible  of  fulfilment  or 

illegal     ; 749 

where  the  condition  is  precedent  and  illegal  or  impossible 750 

what  conditions  are  illegal 751 

902 


INDEX 

[  Hfrt-rciuoH  lire  to  sections.     The  letter  n  after  a  section  nuinljcr  dlrectH  atten- 
tion  to  the  footnotes  of  tlmt  section.] 

ILLEGAL  AND  IMPOSSIBLE  CONDITIONS— Continued. 

conditions  in  restraint  of  marriage 751 

conditions  to  induce  husband  and  wife  ta  live  apart  or  get  a 
divorce     752 

ILLEGITIMATE  CHILDREN: 

when  included   in  devise   to  children 140 

ILLINOIS  AND  MICHIGAN  CANAL:      (see  Canal  Commissioners 
AND  Trustees.) 

ILLINOIS  LAW: 

sources  of   453 

ILLUSORY  APPOINTMENTS :      (see  Powers)    614 

IMPLICATION: 

not    indulged    123-151 

life  estate  by 205,  465 

of  power  of  sale 250-251 

of    cross    limitations 600-601 

of  contingency  of  survivorship — from  gift  over 345  et  seq.,  521 

of  gift  in  default  of  appointment 637 

INALIENABILITY: 

of  contingent  future  interests 48 

of  mere  rights  of  entry 47 

of  contingent  remainder:      (see  Contingent  Remainders.) 47 

INCOME : 

intermediate     207-209 

effect  of  payment  of,  on  vesting  of  legacies 510-513 

INHERITANCE  TAX: 

assessment  of,  on  future  interests 401 

INTEREST: 

effect  of  payment  of,  on  vesting  of  legacies 207-209 

INTERMEDIATE  INCOME:     (see  Income.) 

INTERPRETATION  OF  WRITINGS: 
the  theory  of  legal  interpretation: 

introductory    122 

subject-matter  of  interpretation: 

inducement   distinguished  from  legal  act 123 

903 


INDEX 

[  Ueleivnces  aro  to  sections.     The  letter  n  after  a  sectiou  number  directs  atten- 
tion  to   the  footnotes  of   that  section.  ] 

INTERPRETATION   OF   WRITINGS— Continued, 
standards  of  interpretation: 

Wignioro 's  three  standards  applicable  to  unilateral  acts..    IL'-I 
Mr.  Justice  Holmes'  single  standard  of  interpretation...    125 
the  ' '  will "  or  "  intention  ' '  of  the  inducement  as  a  stand- 
ard   of    interpretation 126 

sources  for  ascertaining  the  tenor  of  the  standard  of  inter- 
pretation— extrinsic   evidence: 

the   instrument   itself    127 

extrinsic   evidence    128 

introductory    128 

the  rule  against  "disturbing  a  clear  meaning" 129 

direct  declarations  by  the  testator  or  settlor 130 

such  declarations  as  relate  to  the  standard  of  in- 
terpretation used,  when  they  do  not  also  dis- 
close the  objects  and  purposes  of  the  induce- 
ment, should  be  received 130 

declarations  of  the  testator  or  settlor  which 
disclose  the  objects  and  purposes  of  the  induce- 
ment        131 

when  excluded    131 

exception  in  the  case  of  equivocation 132 

even  where  extrinsic  evidence  (other  than  direct 
declarations  of  the  testator  or  settlor)  tends 
to  prove  an  individual  standard  of  interpreta- 
tion in  cases  of  ambiguity,  it  may  still  be  ex- 
cluded because  of  too  slight  and  remote  proba- 
tive force  and  too  likely  to  be  used  improperly 
to  establish  the  inducement  as  a  rival  subject 

matter  or  standard  of   interpretation 133 

application  of  the  foregoing  principles 134-141 

comments    upon    the    '  *  object    of    interpretation ' '    and    upon 

' '  strict ' '   and   ' '  liberal ' '   constructionists 142-143 

the  practice  of  the  art  of  interpretation: 

there  is  an  art  of  interpretation 144 

caution  against  indulging  in  speculation  and  conjecture  as  to 
what  the  testator  intended — the  interpreter  should  not  infer 
what  he  (the  interpreter)   would  have  intended  had  he  been 

placed  in  the  position  of  the  testator 145 

in  determining  the  effect  to  be  given  to  surrounding  circum- 
stances (even  when  admissible)  to  support  a  secondary 
meaning,  a  practical  distinction  should  be  observed  be- 
tween the  cases  where  the  difficulty  is  one  of  ascertaining 
what  persons  are  to  take,  or  what  property  is  conveyed,  and 
those  where  the  question  is  what  estate  is  created  or  the 
nature    of    a    contingency 146 

904 


INDEX 

[  Kcfcrcnccs  arc   to  sections.     The  letter  n  after  h  Kectioii   uuinlxr  (Jire(  i^  uiu-u- 
tion   to  the  footnotes  of   that  section.  ] 

INTERPRETATION   OF   WRITINGS— Continued. 

the  interpreter  should,  whenever  possible,  inquire  into  the 
primary  and  secondary  meanings  of  words  and  phrases  with 
a  view  to  adhering  to  the  primary  meaning  unless  the  second- 
ary meaning  is  fairly  required H7 

it  is  an  especially  strong  reason  for  adhering  to  the  primary 
meaning  of  the  language  in  question  as  against  slight  con- 
textual elements  and  surrounding  eircum-stances  supporting  a 
secondary  meaning,  that  the  difficulty  of  coustruction  is  one 
upK)n  which  the  testator's  mind  never  acted,  so  that  there  is 
no  actual  intent  of  the  inducement 148 

the  place  of  the  argument  from  absurdity  or  incongruity....    149 

the  art  of  balancing  all  the  considerations  on  one  side  against 
all  those  on  the  other 150 

the  language  used  must  be  able  to  bear  the  meaning  jdaced 
upon  it  and  no  additions  must  be  made  to  the  context  of 
what  is  not  in   it 151 

the  place  of  precedent  in  handling  problems  of  construction..    152 

INTESTACY,  GIFTS  OVER  ON:     (see  Restraints  and  Forfeiture 
ON  Alienation.)    720-725 

INVESTMENT: 

of  personal  property  subject  to  future  interests 492,  493 

can  life  tenant  of  personal  property  invest  proceeds  in  real  estate.  .   493 

ISSUE: 

meaning  of,  in  gifts  to 140 

the    primary    meaning    of    "issue" — "issue"    as    including 

descendants  and  as  limited  to  children 575 

when  issue  has  been  held  to  include  all  descendants  the  ques- 
tion arises,  does  it  mean  all  descendants  per  capita  or  does 
it  include  only  those  descendants  who  have  no  ancestors  liv- 
ing and  who  stand  in  the  place  of  their  ancestors  deceased .  .   576 

introductory     576 

suppose  the  gift  is  direct  to  issue  and  not  to  issue  by  way 
of  substitution  after  an  ancestor  dweased  to  whom  the 

gift  was  originally  made 577 

suppose  the  gift  is  to  issue  by  way  of  substitution  in  place 

of  a  gift  to  the  ancestor 578 

suppose  the  gift  is  "to  the  children  of  A  aJid  the  issue 

of  any   deceased  child " 579 

suppose  there  is  a  gift  "to  the  children  of  A  and  the  issue 

of  any  deceased  child,  such  issue  to  take  the  parent 's 

share"  or  "to  represent  ajid  take  the  parent's  share"  580 

suppose  the  gift  is  of  one  thousand  dollars  "to  A,  and 

if  A  die  before  the  period  of  distribution  then  to  bis 

905 


INDEX 

[References  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  tbe  footnotes  of   tliat   section.  ] 

ISSUE— Continued. 

issue,  said  issue  to  take  the  share  of  their  parent"  or 
'  *  to  represent  and  take  the  parent 's  share, ' '  or  suppose 
the  gift  is  to  A  for  life  and  then  to  his  issue,  "the 
issue  to  take  the  parent's  share"  or  "to  represent  and 

take  the  parent 's  share  " 581 

the  present  state  of  the  eases  in  Massachusetts 582 

what  is  meant  by  the  statement  that  "where  the  gift  to 
the  issue  is  substitutional  they  take  per  stirpes  and  not 

per  capita   583 

as  including  adopted  child 587  et  seq. 

meaning  of,  in  gift  over  if  first  taker  dies  without  issue.' 551 

ISSUE,  GIFT  OVER  ON  FAILURE  OF:     (see  Gifts  Over.) 

validity  of   445,  467,  469,  470 

and  intestacy,  validity  of 724-725 

possible  meanings  of  "die  without  issue"  and  importance  of  the 

usual  question  of  construction  which  arises 542 

gifts  on  a  definite  failure  of  issue 542  e^  seq. 

the  interest  after  an  estate  tail  must  be  considered  as  limited  upon 

an  indefinite  failure  of  issue 548 

results  in  Illinois  of  holding  a  gift  to  be  limited  upon  an  indefinite 

failure  of  issue 549 

Ewing  V.  Barnes    469,  550 

remoteness  of  gifts  on  an  indefinite  failure  of  issue 549 

to   charity 697  Jt 

JOINT  INTERESTS: 

of  real  pstate   210 

joint  tenancies  other  than  those  in  trustees  and  executors.  .22,  210 

the  statutes 210 

construction    211 

joint  tenancies  in  executors  and  trustees 212 

estates  by  the  entirety  in  husband  and  wife '. 213 

tenancy   in   common 214 

in   personal  property    215 

JUDGMENT  CREDITOR:     (see  Creditor.) 

LACHES: 

ground  for  refusing  specific  performance 664 

LANDLORD  AND  TENANT:     (see  Conditions,  Forfeiture,.  Leases, 
Notice  to  Quit,  Terms  for  Years.) 
leaseholds  subject  to  a  condition 218 

906 


INDEX 

[  KefercnceK  are  to  sections.     The  letter  n  after  a  Bectlon  number  directs  atten- 
tion  to   the  footnotes  of   that  section.  ] 

LANDLORD   AND   TENANT— Continuod. 
conditions  in  leases: 

arising  by  operation  of  law: 

implied  condition  that  a  tenant  shall   not  repudiate   the 

tenancy  and  claim  to  hold  against  the  landlord 233 

by  acts  of  1865  and  1873: 

prior  to  1865  no  ground  of  forfeiture  in  the  absence 
of  express  condition : 

introductory    234 

on   principle    235 

not  altered  by  any  statute  down  to  1865 236 

sec.  2  of  the  act  of  1865  afterwards  appearing  as  sec.  9 

of  the   act   of   1873 237 

see.  8  of  the  act  of  1873 238 

whether  these  acts  have  any  retroactive  effect 239 

by  act  of  the  parties 219-227 

who  may  take  advantage  of  the  breach  of  a  condition  attached  to 

a  term  for  years  or  a  life  estate 241 

effect  of  the  breach  »of  a  condition  in  a  lease 243 

mode  of  perfecting  the  forfeiture  of  a  leasehold 244-255 

(see  Forfeiture.) 

remedy  in  case  of  forfeiture  of  a  lease  duly  perfected 256,  277 

right  of  landlord  to  regain  possession  by  force 257,  276 

condition,  estates  upon:     (see  Condition,  Estates  Upon,  Forcible 
Entry  and  Detainer,  Forfeiture,  Trespass.) 

effect  of  assignment  by  tenant  of  more  than  he  has 233 

concurrent  leases  241 

covenants  against  assignment 279,  715 

surrender  by  the  tenant 254 

LAW  REFORM: 

trend  of,  in  the  law  of  real  property 459 

LEASE:       (see    Conditions,    Forfeiture,    Landlord    and    Tenant, 

Terms  for  Years.) 

provision  that  surrender  shall  be  in  writing 254 

provision  for  forfeiture  without  entry,  demand  for  rent  or  notice 

to    quit    254 

clause  extending  the  time  for  giving  notice  in  case  of  default 254 

provision   for   leave'  and   license  to   enter   with   necessary   force   in 

case  of  forfeiture 276 

covenant  against  assignment  or  subletting 279,  715 

provision  that  consent  to  one  assignment  shall  not  waive  consent 

to  future  assignments 279 

clause  of  renewal  and  Rule  against  Perpetuities 665 

power  of  life  tenant  to  make 651 

907 


INDEX 

[  Keft'rences  are  to  sections.     The  letter  «  after  a  section  nuinlier  (lire<ts  atten- 
tion   to   tlie   footnotes  of   tliiit  section.  1 

LEASE— Continued. 

power  in  executor  and  trustee  to  make 645-646 

power  of  a  court  of  equity  to  permit  in  absence  of  power 647 

LEASE  AND  RELEASE: 

conveyance   by    61,  452 

by  estoppel    480  n 

LEAVE  AND  LICENSE: 

defense  of,  in  trespass 276 

LEOACIES:     (see  Life  Estate,  Personal  Property,  Vested  Inter- 
ests.) 

LEGACIES,  VESTING  OF: 

sense  in  which  "vest"  is  used  when  the  question  of  the  vesting  of 

legacies  is  considered 495 

a  distinction  must  be  drawn  between  the  case  where  the  question  is 
whether  a  legacy   is  contingent  on  the  legatee  surviving  at  a 
future  period  of  distribution  and  where  the  same  question  arises 
in  respect  to  legal  remainders  and  springing  interests  in  land.  .   496 
legacies  charged  on  land: 

a  distinction  must  be  observed  between  the  eases  where  the 
question  is  whether  a  legacy  payable  out  of  the  personal 
estate  is  contingent  on  the  legatee  surviving  at  a  future 
period  of  distribution  and  where  the  same  question  arises 
in  respect  to  a  legacy  charged  on  land  and  actually  paid  out 

of  the  proceeds  of  the  land 497 

legacies  actually  paid  out  of  personal  property: 

the  results  reached  by  the  courts  are  for  the  most  part  merely 
suggestive   as   to   what   considerations   will   furnish   a   sub- 
stantial inference  for  or  against  the  vesting  of  the  legacy.  .   498 
where  there  is  a  direct  gift  with  a  superadded  direction  to  pay  at  a 
future  time: 

in  these  cases  the  context  justifies  the  prima  facie  inference 
that  the  gift  is  immediate  subject  only  to  a  postponement  as 
to  payment  and  is  not  contingent  upon  the  legatee  surviving 

the   period   of   distribution 499 

where  the  only  gift  is  to  be  found  in  the  direction  to  pay  or  divide 
at  a  future  time: 

in  such  cases  the  context  justifies  the  piima  facie  inference 
that  the  legacy  is  contingent  upon  the  legatee  surviving  the 

date    of    payment 500 

cases  where  a  difficulty  arises  in  determining  whether  there  is 
a  direct  gift  with  a  superadded  direction  to  pay  at  a  future 
time,  or  a  gift  only  in  the  direction  to  pay  at  a  future  time  501 

908 


INDEX 

[  KcfciciK  IS  .in-  to  sections.     Tlic  letter  n  after  a  Huiliou  luimlK'r  dirocts  atten- 
tiou    to   tlie   footnotes  <>t  that    section.  1 

LEGACIfJS,   VESTING   OF— Continued. 

whether  the  direction  to  pay  at  the  future  time  is  for  reasons  per- 
sonal to  the  legatee  or  merely  for  the  eonvenienoe  of  the  estate: 
this  is  important  in  determining  whether  or  not  the  legacy  is 

contingent     502 

cases  where  the  only  gift  was  contained  in  the  direction  to 
convert  and  divide  after  a  life  estate  and  where  the  post- 
ponement was  held  to  be  merely  for  the  convenience  of  the 

estate     503 

similar  cases  which  hold,  or  appear  to  hold,  the  legacy  con- 
tingent upon  the  legatee  surviving  the  life  tenant 504 

People  v.  Jennings   504 

Banta  v,   Boyd    505 

Ebey  v.  Adams  506 

Barnes  v.  Johnston    507 

Strode  v.  McCormick   508 

cases  where  it  is  doubtful  whether  the  direction  to  pay  at  a 
future  time  is  for  the  convenience  of  the  estate  or  personal 

to  the  legatee    509 

effect  on  vesting,  of  the  payment  of  interest  or  income: 

cases  where  the  payment  of  interest  or  income  has  no  effect 
on  vesting  distinguished  from  those  where  it  may  have  such 

an    effect    510 

principle  upon  which  the  payment  of  interest  or  income  gives 

rise  to  an  inference  in  favor  of  vesting  the  legacy 511 

where  the  legacy  is  to  a  named  individual  at  a  future  time,  with 

interest  or  income  in  the  meantime 512 

where  the  legacy  is  to  a  class  at  a  future  time,  with  the  income 

in  the  meantime 513 

cases  (a)  where  the  income  is  not  given  during  the  entire 
period  before  distribution,  and  (b)  where  all  the  income  is 
accumulated  and  given  at  the  period  of  distribution  along 

with   the  principal    514 

legacies  payable  when  the  youngest  of  several  legatees  reaches  a 

given    age    515 

miscellaneous  grounds  of  inference  in  favor  of  vesting: 

the  fact  that   the  legacy   is  of  a  residue,  or  is  constituted  a 

trust  fund  separated  from  the  balance  of  the  estate 516 

where  a  charge  is  placed  upon  the  share  of  the  legatee 517 

effect  of  references  to  "shares"  or  "portions"  of  legatees  to 
whom  the  only  gift  is  in  a  direction  to  pay  or  divide  at  a 

future    time    518 

effect  of  gifts  over: 

inference  in  favor  of  vesting  founded  upon  the  presence  of  a 

gift  over   519 

cases  where  the  gift  over  furnished  an  argument  for  vesting.  .519a 

909 


INDEX 

[Ueferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of  that  section.] 

LEGACIES,  VESTING  OF— Continued. 

inference  in  favor  of  the  gift  being  contingent  founded  upon 

the  presence  of  a  gift  over 520 

reflecting  back  a  contingency  of  survivorship  from  the  context 

of  a  gift  over  of  what  the  legatee  would  have  had  if  living.  .    521 
inference  in  favor  of  contingency  where  there  is  an  express 

direction  as  to  vesting 522 

effect  of  the  gift  or  legacy  being  to  a  class: 

the   general   rule   is   that   no   inference   of   contingency   arises 

from  the  fact  that  the  legacy  is  to  a  class 523 

Drury  v.  Drury 524 

effect  to  be  given  to  the  testator  's  inducement 525 

eases  where  no  question  of  vesting  arises  should  be  distinguished: 
the  eases  where  there  is  a  gift  over  if  the  legatee  dies  before 
the  period  of  distribution  and  where  by  the  happening  of  the 
divesting  contingency  the  gift  over  takes  effect,  must  be  dis- 
tinguished from  the  cases  where  the  question  is  whether  the 
future  legacy  is  subject  to  a  condition  precedent  that  the 

legatee  survive  the  period  of  distribution 526 

balancing  inferences  for  and  against  vesting: 

cases  illustrating  the  manner  in  which  the  foregoing  considera- 
tions, or  some  of  them,  must  be  discovered  and  balanced 
against  each  other  in  order  to  obtain  a  result  as  to  whether 

or  not  the  legacy  is  vested  or  contingent 527 

equitable  interests  in  land  or  in  a  mixed  residue  of  real  and  per- 
sonal property: 

on  what  basis  is  the  vesting  or  contingency  of  the  gift  of  such 

interests  to  be   decided 528 

subject  to  payment  of  debts  and  other  legacies 666  et  seq. 

LIBERUM  TENEMENTUM,  PLEA  OF:    (see  Trespass.) 

LICENSE : 

as  a  defense  to  forfeiture 279 

LIFE  ESTATE: 

by  express  words: 

defined    201 

created     202 

by  words  explicitly   202 

expressly   by   construction 203 

by  implication   205 

when   trustee   takes .183-193 

by  way  of  use  70 

in  husband  by  marital  right 387 

premature  determination  of,  by  merger 311 

910 


INDEX 

[Keferenres  arc  to  scctioDH.     Tbe  letter  n  after  a  section  nuniher  dlrectH  atten- 
tion  to  the  footnotes  of   that  section.  ]- 

LIFE  ESTATE— Continued. 

when  estate  comes  to  an  end  by  limitation  or  is  forfeited lid.i 

created  by  Statute  on  Entails  in  place  of  estate  tail 402-403 

determination  of  classes  when  period  of  distribution  comes  at  the 

termination  of  a 565    566 

implied  condition  upon   which  the  feudal  tenant  held 235 

whether  sec.  8  of  the  Landlord  and  Tenant  Act  of  187.3  applies  to  238 
who  may  take  advantage  of  the  breach  of  condition  attached  to.  .   240 

effect  of  breach  of  condition  attached  to 243 

mode  of  perfecting  forfeiture  of 244 

effect  of  a  restraint  on  alienation  in  construing  a 727  n 

when  first  taker  has  a 717 

when  turned  into  an  estate  tail  by  a  gift  on  failure  of  issue 549 

forfeiture    upon    alienation    of 714,  730,  731 

by    implication     465 

can  be  limited  to  the  grantor  by  a  statutory  conveyance 458,  465 

in  personal  property   490 

whether  power  in  life  tenant  to  use  up  and  consume  the  prin- 
cipal     492  n 

investment  by  life  tenant 493 

when  life  tenant  must  give  security 494 

with  power  of  disposition  or  appointment 726 

when  life  tenant  has  a  power  of  sale 648-651 

effect  of  express  reservation  of,  in  a  deed 465  n,  466 

legal  and  equitable,  subject  to  restraints  on  alienation 730,  731 

effect  of  deeds  not  in  terms  reserving  a 463,  466 

LIMITATIONS,  STATUTE  OF:    (see  Adverse  Possession.) 

operation     231 

application   to   mortgages    232 

how  far  constitutional 231 

effect  on  mortgage  of  barring  of  debt 229-232 

effect  of  new  promise  after  mortgage  debt  is  barred 230 

possession  of  mortgagor,  when  adverse 217  h 

LIVERY  OF  SEISIN:    (see  Seisin.) 

what   interests  transferred  by 42 

no   shifting  interests   created   by 26,  453 

no  estate  can  be  limited  to  the  feoffor  by 70,  464 

in  use  in  England  in  the  19th  centurj'^ 453  n 

how  far  in  use,  or  available  for  use,  in  Illinois 453,  455,  464 

LIVES  IN  BEING: 

Rule  against  Perpetuities 116,  652-655 

MARRIAGE : 

conditions  in  restraint   of 751 

911 


INDEX 

[  References  are  to  seetions.     The  letter  n  after  a  section  number  directs  atten- 
tion  to   the  footnotes  of  that  section.] 

MARRIED  WOMEN: 

clauses  against  anticipation  in  settlements  of 737  n 

construetiou  of  powers  in  settlements  of 644  7i 

separate   property    act    388,  389 

MERGER : 

destruction  of  life  estate  by 311 

occurs  when  rule  in  Shelley 's  case  applies 440 

MODIFYING  CLAUSES: 

Rule    against    Perpetuities 681,  682,  683 

MORTGAGES:   (see  Trust  Deed  by  Way  of  Mortgage.) 

elementary  character  of,  as  the  conveyance  of  a  fee  simple  subject 

to  a  condition  subsequent 217 

when  may  mortgagee  maintain   ejectment 217 

no  notice  to  quit  necessary  before  ejectment  by  mortgagee 217  n 

difficulty  in  the  rule  that  when  the  debt  is  barred  the  mortgagee 

has  no  right  to  possession 229 

view  that  the  mortgagee  has  a  base  or  determinable  fee 230 

view  that  the  mortgagee 's  interest  after  default  is  subject  to 

a  condition  subsequent   231 

barring  of  the   debt   is   simply   an   equitable    defence   to   the 

mortgagee 's  legal  title  232 

effect  of  new  promise  after  debt  barred , 230 

power  of  sale  in 610  n 

MUNICIPALITY: 

fee  passes  to^  upon  a  statutory  dedication 212 

MUTUALITY : 

lack  of,  ground   for  refusing  specific  performance 664 

NON-EXCLUSIVE  POWERS :      (see  Powers)    615 

NOTICE   TO  QUIT: 

not  necessary  before  mortgagee  brings  ejectment 217  n 

ten-day: 

under  see.  9  of  Landlord  and  Tenant  Act 247 

effect  upon  of  sec.  4  of  the  act  of  1865 248 

is  it  necessary  for  forfeiture  other  than   for  default  in   the 

payment  of  rent    251 

statutory  time  extended  by  mutual  agrcomeut 255 

dispensed  with  by  agreement 254 

giving,   for  non-payment  of  rent  a  waiver  of   forfeiture 280 

how    served     252 

912 


INDEX 

[ Ueferenccs  are  to  Hootions.     The  lettf-r  n  utti-r  a  section  iuuiiIjim-  directs  atten 
tion   to   the   footnotes  of   that   section.] 

OPTION  TO  PURCHASE: 

subject  to  rule  against  perpetuities 664-66G 

"OR"    CONSTRUED    "AND": 170 

' '  and  ' '   construed    "  or  "    .'182 

PARTITION: 

by  tenant  in  common  of  future  interest .'J98,  480 

validity   of   clause   forbidding 727 

PERPETUITIES,    RULE    AGAINST: 

the  necessity  for  a  rule  limiting  the  length  of  time  in  the  future  at 
which  future  interests  could  be  designated  to  take  effect  became 

apparent  in  the  17th  Century li:'> 

Manning 's  Case  and   Cliild  v.  Baylic 114 

Duke    of    Norfolk 's   Case 1 1  •'> 

subsequent   leading   cases   completing   the    statement    of   the    Rule 

against  Perpetuities   116 

in  determining  when  a  freehold  interest  took  effect  in  possession  re- 
sort was  had  to  certain  purely  feudal  conceptions 117 

it  wus  enough  if  the  future  interest  vested  in  interest  (as  distin- 
guished  from   taking   effect   in   possession)    within   the   required 

time    118 

statement  of  the  Rule 119 

inaccurate  and  unsatisfactory  statements  of  the  Rule 120 

public  policy  behind  the  Rule  against  Perpetuities 121 

the  Rule  and  its  corollaries : 

the  Rule  as  stated  by  Professor  Gray  is  in  force  in  Illinois.  .   652 

the  future  interest  must  vest  in  the  proper  time 6-53 

what  is  meant  by  ' '  vest " 6-54 

other  corollaries  referred  to 655 

references  to  the  Rule  as  stated  in  Bouvier 's  Law  Dictionary.   6.">6 
the  difficulty  in  most  cases  has  to  do  with  the  application  of  the 

Rule  to  the  particular  limitation 657 

the   Rule   against   Perpetuities   distinguished   from   the   rule   which 

makes  void  restraints  on   alienation  and   provisions  requiring  a 

trusteeship  (otherwise  valid)  to  be  effective  at  too  remote  a  time: 

the  special  rule  as  to  restraints  on  alienation  and  provisions  for 

indestructible    trusts    658,  7.'57 

the  Illinois  cases  659 

trusts  for  the  perpetual  care  of  a  cemetery  lot 660 

effect  on  other  provisions  of  holding  void  a  requirement  that  a 
trust  should  remain  indestructible  for  too  long  a  time....   661 
interests  subject  to  the  rule: 

legal   interests    662 

equitable   interests    6"3'{ 

Kales  rut.  tut.— .")S  Qio 


INDEX 

[Keferences  are  to  sections.     The  letter  «  after  a  section  number  directs  atten- 
tion  to   tbe   footnotes  of  tliat  section.] 

PEEPETUITIES,  EULE   AGAINST— Continued. 

contracts 60 1 

Bauer  v.  Lumaghi  Coal   Co.  and  London  &  S.  W.  Ey.  v. 

Gonnn     664 

options   to   purchase 66") 

interests  limited  to  take  effect  ' '  when  debts  are  ijaid, "  "  a  trust 
executed,"  or  "a  will  probated": 

introductory    666 

suppose  a  term  is  given  to  trustees  upon  trust  to  pay  debts  and 

subject  to  the  term  the  property  is  devised  to  A  absolutely.  .    667 
suppose  the  fee  is  given  to  trustees  upon  trust  to  pay  debts  and 
when  debts  are  paid  the  land  is  devised  to  A  absolutely.  .  .  .    668 

is   A 's  interest  legal   or   equitable 668 

suppose  A 's  interest  be   equitable 669 

suppose  legacies  are  bequeathed  to  several  and  the  residue  of 
the  testator 's  personal  estate  alone  is  bequeathed  to  A 
"when  the  testator's  debts  and  legacies  are  paid  and  the 

estate   settled "    670 

suppose  there  are  bequests  of  several  legacies  and  then  a  devise 
to  A  absolutely  of  the  residue  of  the  testator's  real  and 
personal  estate  ' '  when  debts  and  legacies  are  paid  and  the 

estate   settled "    671 

suppose  that  Blackacre  be  devised  to  A  in  fee  when  the  tes- 
tator 's  debts  are  paid,  there  being  no  charge  of  the  debts 
upon  the  real  estate  by  words,  but  only  by  the  usual  statute 
making  real  estate  liable  for  the  payment  of  debts  after  the 

personal   estate   is   exhausted 672 

suppose  a  devise  be  made  of  Blackacre  to  A  in  fee  when  the 
testator  's  debts  and  legacies  are  paid  and  neither  the  debts 
nor  legacies  are  charged  upon  the  real  estate  by  the  testa- 
tor 's  words  or  by  any  statute 673 

suppose  a  devise  in  fee  to  trustees  upon  trust  to  pay  debts  and 
legacies  and  when  the  same  are  paid  to  divide  the  estate 
among  such   of   his  children   or  more  remote   issue   as  may 

' '  then  ' '  be  living   67i 

suppose  that  the  devise  be  in  fee  to  trustees  upon  trust  for  A 
for  life  and  immediately  upon  A's  death  to  pay  A's  debts 
and  when  his  debts  are  paid  to  divide  among  the  testator 's 

then  living  issue    675 

gifts  conditioned  upon  the  devisees  making  payments  to  others  676 
limitations  to  classes: 

introductory 677 

jjroblem  where  the  interest  to  the  class  is  vested  as  distin- 
guished from  executory,  but  subject  to  a  postponed  en- 
joyment  clause    678 

cases  (a)   and   (b) 678 

914 


INDEX 

[Keferences  arc  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion   to   the  footnotes  of   that  section.] 

PERPETUITIES,  KULE  AGAINST— Continued. 

cases    (c)    and   (d) 679 

cases  (e)  and  ( f ) Qg(j 

problem    where    the    interest   to    the   class   is   contingent    upon 

their  attaining  twenty-five  C8 1 

cases    (a)    and    (b) q^[ 

separable  limitations: 

contingencies  separated  by  act  of  the  testator  or  settlor 685 

separation    of    contingencies    by    operation    of    law — Rule    of 

Challis  V.  Doe gg^j 

application  of  the  rule  of  de-structibility  of  contingent  remainders 
to  prevent  the  violation  of  the  Rule  against  Perpetuities: 

introductory    gy; 

suppose  the  legal  contingent  remainder  is  limited  to  a  class.  .   688 
suppose  the  future  interest  is  one  which  may  take  effect  as  a 

remainder   or  as   a   shifting   interest 689 

powers : 

powers  void  in  their  creation  because  they  may  be  exercised 

at  too  remote  a  time 5^^ 

invalidity  for  remoteness  in  the  exercise  of  a  valid  power 691 

where  the  power  is  special 69 1 

where  the  power  is  general  to  appoint  by  deed  or  will 692 

where  the  power  is  to  appoint  by  will  only,  but  is  as  gen- 
eral as  such  a  power  can  possibly  be 69:; 

problem    stated    69;! 

the  cases  are  in  conflict 69.1 

solution  of  the  problem  on  principle 69") 

limitations  after  an  estate  tail 696 

charities: 

trust  for  charitable  purposes  not  void  for  remoteness  though 

the  trust  must  last  indefinitely 697 

where  a  charitable  bequest  is  to  a  corporation  or  association 

not  yet   formed    69S 

accumulations: 

apart  from  the  statute  on  accumulations: 

accumulations  other  than  for  charity 699 

accumulation   for  charitable  purposes 700 

the   Thellusson   Act   re-enacted   in    Illinois 70] 

construction: 

attitude   of   the   court    in   handling   questions   of   construction 

which  must  be  determined  before  the  Rule  is  applied 703 

modifying  clauses   j()-] 

estoppel  and  election: 

one  who  has  received  an  interest  devised  by  a  will  is  not  pre- 
cluded from  attacking  the  provisions  of  the  same  will  on  the 

ground  that  they  violate  the  Rule  against  Perpetuities 7^4 

915 


INDEX 

r  IJpferonce.s  arc  to  soctions.     Tho  lettor  u  after  a  section  mnnliei-  directs  ntten- 
tion   to   tlio   lootnotes  of  tliiit  section.  ] 

PEKPETUITIES,  RULE  AGAINST— Continued. 

effect  of  failure  of  some  limitations  for  remoteness  on  others: 
effect   on   prior   limitations   not   too    remote   when   subsequent 
limitations  fail  for  remoteness: 

general  rule  as  stated  by  our  Supreme  Court  in  Barrett 

V.  Barrett   705 

cases  •where  the  court  held  that  the  limitations  not  void  for 

remoteness   should   be  enforced 706 

cases  where  the  valid  portions  of  the  will  failed  along  with 

the  invalid    707 

summary  of  conclusions  from  the  cases 708 

Gray's  statement  in  his  Rule  against  Perpetuities 709 

effect   on   subsequent   limitations    when    prior   limitations    are 
void  for  remoteness: 

the  rule  of  Monypenny  v.  Dering 710 

PERPETUITY : 

first   used    in    referring    to    the    attempt   to    make    an    estate    tail 
inalienable    18 

PEACEABLE: 

what  entry  is    261,  267-269 

PERSONAL  PROPERTY: 

estates  and  future  interests  in: 

chattels   personal    107,  485 

English   Law    107 

American  cases   108 

chattels  real 109 

no  doctrine  of  destructibility 110 

the  Rule  in  Shelley's  Case  has  no  application Ill,  4:54,  439 

future  interests  in  personal  property  created  by  means  of  trusts  112 
exception  where  articles  are  necessarily  consumed  in  the  using  486 

nature  of  the  future  interest 487 

whether  legal  or  equitable 487 

whether  vested  or   executory T 488 

where  a  chattel  real  is  involved 488 

where  the  limitation  is  of  a  chattel  personal 489 

the  language  of  the  Supreme  Court 489 

the  point  actually  decided 490 

whether  contingent  upon  surviving  the  life  tenant 491 

rights  of  those  interested  in  personal  property  in  which  future 

interests   are   created 492 

enjoyment  in  specie  or  conversion  and  investment 492 

where  the  intent  of  the  settlor  is  expressed  in  words  492 
where  no  intent  has  been  explicitly  indicated  Ijy  words  493 

916 


IN'DKX 

[References  are  to  sections.     The  letter  n  after  a  section  number  dlriMts  ittten- 
tlon   to  tlie  footnotes  of   that   section.  ] 

PERSONAL  PROPERTY— Continued. 

liow  may  the  second  taker  protect  liLs  jjrojierty  interest..   494 
cases  holding  that  condition  precedent   of   survivorship  exists  not 

authority  in  case  of  real  estate 356 

effect  of  limitations  of,  to  A  and  the  heirs  of  his  body,  or  to  A 
•  for  life   and   then   to   the   heirs  of  his   body,   or   to   A   and   his 

issue    199-200 

joint  interests  in   215 

terms   for  years  are 21,  2r55 

PER  STIRPES  OR  PER  CAPITA: 

where  gift  is  to  "  heirs " 571 

where  gift  is  to  "  issue  " 575  e^  seq. 

PLATS:     (see  Dedication.) 

PLEADING : 

on  behalf  of  defendant  in  trespass:    (see  Trespass.) 

POSSIBILITIES  OF  REVERTER: 

reversionary  interests  283 

described    23,  300 

distinguished  from  a  right  of  entry  for  condition  broken 283 

distinguished    from    a   conditional    limitation    301 

none   since   Quia   Emptores 230,  286 

how  far  valid  in  Illinois 302 

is  right  of  dedicator  upon  a  statutory  dedication  a 284 

whether  entry  necessary  to  perfect.  .  .  ; 285,  300 

whether   mortgagee    has    230 

application   of   the   Rule   against    Perpetuities   to 662 

transfer  of: 

in  general -^OO  /( 

by    statute    • 293 

by   devise    240 

POSTPONED  ENJOYMENT:    (see  Restraints  on  Alienation.) 
of  absolute  equitable  interests: 

how  far  recognized  in  this  state 732 

how  far  valid  on  principle: 

the   authorities   at   large 733 

reasoning  of  the  English  cases 734 

the  reason  of  repugnancy  unsound 73.'i 

reasoning    based    upon    public    policy : 

preliminary     736 

the  duration  of  the  postponement  must  be  limited  in 
time     678,  679,  680,  737 

917 


INDEX 

[References  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion to  the  footnotes  of  that  section.  ] 

POSTPONED  ENJOYMENT— Continued. 

consideration  of  the  prec-ise  issue  involved 738 

do  not  fall  with  spendthrift  trusts 738 

a  matter  purely  personal  to  the  legatee 563 

for  the  purpose  of  accumulation 699,  700 

where   gift  is  to  a  class: 

validity  of    568 

period   of  distribution 568 

remoteness  of  vested  interests  which  are  subject  to  post- 
ponement     678-680 

clauses  of,  for  convenience  of  estate — effect  of,  on  vesting ....  502  et  seq. 
remainders  vested  subject  to 333  et  seq. 

POWERS: 
created : 

by  way  of  use 73,  452 

by    devise    85 

classification,  validity  and  extinguishment  of  powers — appointment 
in  fraud  of  powers: 

classification  of  powers 609 

validity    of    legal    interests    created    by    the    exercise    of    a 

power 468,  610 

extinguishment  of  powers   611 

appointment  in  fraud  of  powers 612 

special  restrictions  upon  the  capacity  to  be  a  donee  of  a  power 

or  to  exercise  a  power  attempted  to  be  conferred 613 

illusory   appointments  and  non-exclusive  powers: 

illusory    appointments    614 

non-exclusive  powers   615 

the  hotchpot  clause  616 

survival    of    powers .  • 617 

powers  surviving  pursuant  to  statute: 

survival  in  case  of  the  death  of  one  of  several  executors.  .  .   618 
survival  in  case  one  of  several  executors  refuses  to  act. .  .   619 
.survival  in  case  one  of  several  executors  fails  to  qualify.  .   620 
no  survival  to  the  administrator  with  the  will  annexed.  .  .   621 
exercise  of  the  power  which  did  not  survive  supplied  by  hold- 
ing as  constructive  trustees  those  who  take  in  default  of  ap- 
pointment : 

where  the  power  is  in  executors  to  sell  real  estate  to  pay 

debts  or  legacies,  or  both 622 

suppose  the  power  is  given  to  executors  to  sell  real  estate 
and  distribute  the  proceeds  to  those  who  take  the  real 
estate  if  it  were  not  sold 623 

918 


INDEX 

[RcfcrorKcs  aro  to  sections.     The  letter  n  after  a  Bectlon  nunibor  dlrertB  atten- 
tion  to   the  footnotes  of   that  section.  ] 

POSTPONED  ENJOYMENT— Continued. 

powers  in  executors  and  trustees  construed  as  exercisable  \ty 
whoever  for  the  time  being  holds  the  office: 

distinction  between  real  and  spurious  powers 624 

problem  wholly  one  of  expressed  intent 625 

cases  whore  the  power  is  given  to  trustees  who  take  an 
absolute  interest  in  the  trust  estate 6"Jtj 

cases  where  the  beneficial  interest  is  in  A  and  where  B  and 
C  have  power  to  divert  the  beneficial  interest  by  ap- 
pointment to  D 627 

cases  where  a  real  power  is  given  to  executors  to  sell  to 
pay  debts  or  legacies,  or  both 628 

cases  where  the  power  in  executors  is  one  not  only  to  sell 
to  pay  debts  or  legacies,  or  both,  but  also  to  sell  for  the 
convenience  of  the  estate  and  hold  the  proceeds  for  the 
one  entitled   to   the   land 629 

cases  where  there  is  a  power  in  executors  to  sell,  not,  how- 
ever, to  pay  debts  or  legacies,  but  to  hold  the  proceeds 
for  the  benefit  of  those  entitled  to  the  land  in  place  of 
the  land    630 

cases  where  the  executors  have  a  discretionary  power  to 
sell  and  apply  the  proceeds  in  a  way  which  changes  the 
beneficial   interests    6.'5 1 

suppose  that  trustees  have  only  a  term  for  years  or  a  life 
estate  and  a  power  to  sell  the  fee  and  hold  the  pro- 
ceeds for  the  devisee  of  the  legal  estate  in  fee  after  the 
term  or  the  life  estate 6o2 

treatment  of  the  subject  of  survival  of  powers  by  dis- 
tinguished English   writers    63.'? 

powers  in' trust   and  gifts  in  default   of  appointment: 

the  problem  stated   6''.4 

where  there  is  a  devise  to  trustees  upon  trust  to  transfer 
to  certain  persons,  with  power  in  the  trustees  to  make 
a  selection  or  exercise  a  power  to  appoint  among  the 
beneficiaries    633 

where  there  is  no  gift  to  trustees  but  only  a  real  power, 
there  may  still  be  sufficient  language  from  which  the 
court  can  properly  find  a  direct  gift  to  the  objects  of 
the  power   6.')6 

suppose  there  is  merely  a  power  to  appoint  to  special 
objects  and  no  express  gift  in  default  of  appointment, 
and  no  basis  in  the  language  used  for  any  dire-t  gift 

to  such  objects 6.36 

appointed    property   as    assets 638 

defective  execution .   639 

'  what   words   exercise   a   power 640 

919 


INDEX 

[  Iveferences  are  to  sections.     The  letter  ii  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of   that  section.  J 

POWEES— Continued. 

the  plain  case 640 

the  difficult  case  occurs  where  the  donee  makes  a  general 
gift  of  all  his  property  witliout  any  direct  reference  to 

the  power  or  his  intention  to  exercise  it 641 

effect  of  excessive  execution 642 

existence  and  scope  of  powers  of  sale  and  lease : 

power  in  executors  and  trustees  to  sell  and  dispose  of  the 

fee  of  real  estate    643 

existence  of  the  power 643 

extent  of  the  power .  644 

power  in  trustees  to  make  leases 645 

•when  the  trustee  has  a  legal  estate   in  fee  simple.  .  645 
when  the  trustee  has  a  legal  estate  for  years  or  for 

the  life  of  the  equitable  life  tenant  only 646 

in  the  absence  of  power  in  trustees  to  sell  the  fee  or  to 
make  a  long-term  lease,  such  sale  or  lease  may  be 
effected  with  the  aid  of  a  court  of  equity  in  cases  of 

necessity 647 

power  in  life  tenants  to  sell  or  dispose  of  the  fee 648 

existence  of  the  power 648 

extent  of  the  power 649 

disposition   of   the   proceeds   of  sale 650 

power  of  life  tenant  to  make  leases 651 

remainders  in  default  of  appointment 332 

gifts  over  in  default  of  appointment 726 

application  of  Rule  against  Perpetuities  to 690-695 

in  life  tenant  to  use  up  principal 486 

to  appoint  new  trustees 444,  452 

PRECEDENT : 

place  of,  in  matters  of  interpretation 152 

PRIMO-GENITURE,  RULE  OF: 

whether  it  survives  in  Illinois 409 

PROBATE  COURT: 

practice  in,  when  there  is  a  life  estate  in  personal  property 494 

whether  it  has  power  to  order  life  tenant  of  personal  property  to 

give   security    494 

power  to  appoint  new  trustee 613 

PUBLIC  POLICY: 

in  favor  of  preventing  the  outstanding  of  title  to  ways  dedicated 

in  persons  other  than  the  abutting  owner 292 

behind  the  acts  in  favor  of  the  abutting  owner  upon  a  statutory 
dedication   292 

920 


INDEX 

[  lloffriiiccs  ail'   to  sections.     Tbe  letter  n  alter  a  section  number  ilir.M  ts  atteii 
tion   to   the  footnotes  ol"   tbat   section.  ] 

PUBLIC  POLICY— Coutiuued. 

in  favor  of  the  greatest  freedom  to  land  owners  in  the  creation  of 
future  interests  in  land 458,  459,  460,  7;i5 

iu  favor  of  the  non-recoguition  of  possibilities  of  reverter  so  that 
upon  dissolution  of  a  charitable  corporation  its  lands  escheat ....    ;iU2 

source  of  the  rule  that  gifts  over  by  way  of  forfeiture  on  alienation 
are    void     71'^>  ^^'^ 

source  of  the  Bule  against   Perpetuities 121,  459 

not  violated  by  holding  gifts  over  on  intestacy  and  a  definite  failure 
of  issue  valid    724 

the  holding  of  gifts  over  on  intestacy  void  rests  upon  no 72.'! 

none  in  support  of  the  holding  that  postponed  enjoyments  of  abso- 
lute equitable  interests  are  void TMiTM 

against,  to  allow  restraints  on  alienation  of  absohite  equitable 
interests     727  et  scq. 

against  permitting  the  alienation  of  future  interests ;569-37S 

QUALIFIED  FEE:     (see  Fee  Simple,  Possibilities  of  Reverter.) 

QUIT-CLAIM  DEED: 

does  not  refer  to  any  other  than  a  present  transferable  interest.  .374  7i 

vested  remainders  transferred  by 308 

insufficient  to  transfer  contingent  remainders 309 

good   to   pass   reversions 304 

sufficient  to  release  a  future  interest 43,  320a 

effect  of,  to  pass  an  executory  devise 480,  481 

REAL  ESTATE: 

difference  between,  and  personal  property  in  construction  of  "die 

without   issue "    '^^"^ 

gifts  over  on  intestacy  of 72- 

gifts  over  on  failure  of  issue  of 542  et  seq. 

vesting  of  legacies  charged  upon 497 

legacies  charged  on,  distinguished  from  bequests  of  personalty...   497 

investment  in,  by  life  tenant  of  personal  property 493  n 

' '  real  estate  trusts, ' '  whether  void  for  remoteness 658-661 

REAL  PROPERTY: 

reform   of  law  of "^'^^ 

RECORD : 

conveyances    by     ^"^ 

RECORDING  ACTS: 

effect  of  not  recording  on  adverse  possession  against  remaindermen  ;!97 

RECOVERIES: 

44 

as  a  means  of   barring  estates  tail 1' 

921 


INDEX 

[References  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  tlie  footnotes  of  that  section.] 

REDEEM : 

right  of  tenant  to,  for  forfeiture  of  lease 277 

EEFORM:     (see  Law  Reform.) 

REGISTRY  OF  DEEDS: 

459 

RELEASE^     (see  Lease  and  Release.) 43 

of  cause  of  forfeiture 280 

heir  's  expectancy  may  be  released  to  ancestor 374 

of  contingent  remainder 320a 

of  executory  devise  and  future  uses   479 

effect  of  release  of  life  estate  to  vested  remainderman 392 

REMAINDERS:     (see  Contingent  Remainders,  and  Vested  Inter- 
ests.) 

in  the  feudal  land  law 25,  32 

by  way  of  use 71 

vested    and    indefeasible 93 

defeasible  and  uncertain  ever  to  take  effect  in  possession 94 

the  problem  of  Egerton  v.  Massey 95 

creation  of   307 

vested — examples    of   and    characteristics 308 

vested,  subject  to  be  divested 327-328 

problems  of  construction  in  determining  whether  remainder  vested 

or  contingent    329-356 

in  default  of  appointment 332 

New    York    statutory    distinction   between    vested    and    contingent 

remainders   , 357-368 

jurisdiction  of  equity  to  set  aside  transfer  of 369-373 

adverse   possession    against 383-397 

descent  of,  from  whom  traced 380-382 

statutory  remainder  in  place  of  estate  tail 402-409 

after    estate    tail 410-411 

acceleration    of    599 

RENT: 

default  in,  as  a  cause  of  forfeiture 234-238 

mode  of  forfeiture  for  default  in,  by  tenant 245 

forfeiture  for  non-payment  of,  relieved  against  by  equity 277,  282 

receipt  of,  when  a  waiver  of  forfeiture 280 

demand  for,  to  perfect  forfeiture  of  a  term 278 

under  sec.  4,  Act  of  1865 248 

common  law  demand  for,  how  far  abolished  in  Illinois 250 

how  made   252 

dispensed  with   by  agreement 254 

922 


IXDEX 

( IJoff rcncfs  an-  to  soctions.     The  letter  »i  after  a  section  number  directs  atten- 
tion  to  the   footnotes  of  that  section.] 

RENUNCIATION: 

effect  of,  by  executor  with  a  power  of  sale 619 

REPUGNANCY: 

origin  and  scope  of  the  reason  of 447 

used  to  make  void  all  shiftinjr  interests  by  deed  or  will 

446,   447,   471,  721 

as  a  ground  for  holding  gifts  over  on  intestacy  void t21,  723 

as  a  ground  for  holding  gifts  over  by  way  of  forfeiture  on  the 

alienation  of  a  life  estate  void 714 

as  a  reason  for  holding  void  postponements  of  absolute  equitable 

interests     734-735 

RES  AD  JUDICATA: 

contingent  remainder-man  bound  by  decree,  by  representation....   326 

RESCISSION: 

of  contract  for  support  in  a  conveyance 221 

RESIDUE: 

effect  of  gift  of,  on  intermediate  income 207-209 

on   vesting    516 

RESTRAINTS  ON  ALIENATION: 

first  attempted,  to  make  estates  tail  inalienable 18 

gifts    over    on    failure    to    alienate    distinguished    from    executory 

devises  in  general 471 

rules    holding    restraints    void    distinguished    from    Rule    against 

Perpetuities     658-661 

forfeiture  on  alienation  as  distinguished  from  restraints  on  aliena- 
tion         711 

forfeiture  on  alienation: 

of  a  fee  simple  absolute  or  an  interest  in  personalty: 

where  the  fee  simple  or  absolute  interest  is  in  possession.  .    712 

forfeiture  upon  alienation  of  future  interests 713 

of  estates  for  life  or  for  years: 

forfeiture  upon  alienation  of  a  life  estate 714 

forfeiture  upon  alienation  of  a  term  for  years 715 

of  an  estate  tail  or  the  statutory  estates  in  place  thereof.  .  .  .    716 
forfeiture  on  failure  to  alienate — gifts  over  on  intestacy : 
where  the  first  taker  has  a  fee  or  absolute  interest : 

introductory — typical  cases  stated  for  consideration 717' 

consideration  of  cases  3  and  3a 718 

cases  2  and  2a 719 

case  1 — gifts  over  on  intestacy 720 

result  of  the  authorities 720 

923 


INDEX 

[References  are  to  sections.      The  letter  ;i  after  a  section  nuinher  directs  atten- 
tion  to  the  footnotes  of  tliat  section.  ] 

RESTRAINTS  ON  ALIENATION— Continued. 

excuse  for  reconsidering  the  authorities  upon  principle  721 

reasons  for  holding  void  gifts  on  intestacy 722 

of    personal    property 722 

of    real    estate 723 

ease  la — gifts  over  on  intestacy  and  failure  of  issue 724 

on  principle  the  gift  over  should  be  held  valid  even 
though  the  gift  over  on  intestacy  be  held  void ....    724 

state   of  the  authorities 725 

where  the  first  taker  has  only  a  life  estate: 

gifts  in  default  of  the  exercise  of  a  life  tenant 's  power  of 

disposition  or  appointment  are  valid 726 

restraints  on  the  alienation  of  a  fee  simple  or  absolute  interest  in 
personalty: 

restraints  on  the  alienation  of  a  legal  estate  in  fee  or  an  abso- 
lute interest  in  personal  property 727 

where  the  interests  are  equitable  there  are  serious  difficulties 
in  effecting  an  involuntary  alienation,  even  where  no  express 

restraints  on  alienation  are  imposed 728 

by  an  extension  of  the  Rule  of  Claflin  v.  Claflin  which  permits 
the  creation  of  indestructible  trusts  of  absolute  and  indefeas- 
ible interests,  restraints  on  alienation  during  the  time  the 

trust  remains  indestructible  have  also  been  permitted 729 

restraints  on  the  alienation  of  estates  for  life  or  for  years: 

restraints  on  alienation  of  a  life  estate 730 

when   the   interest   is   legal 730 

where  the  life  interest  is  equitable 731 

iudestrtictible  trusts  of  absolute  and  indefeasible  equitable   inter- 
ests: 

taken  by  themselves  and  considered  separately  from  any  re- 
straints on  alienation  they  are  void  provided  they  are  prop- 
erly limited  in  time: 

the  doctrine  of  Claflin  v.  Claflin 732 

how  far  recognized  in  this  State 732 

how   far   sound   on   principle 733 

the   authorities   at   large 733 

reasoning   of   the   English   cases 734 

the  reason  of  repugnancy  unsound 735 

reasoning  based  upon  public  policy 736 

preliminary   736 

the   duration   of   the   postponement  must   bo 

limited  in   time 737 

consideration  of  the  precise  issue  involved.  .    738 
;i   lioJding,  however,  that   restraints  on  alienation  attached  to 
the   absolute   and    indefeasible   equitable    interest    while   the 

924 


INDEX 

[  KoftTt'Dct's  art'   to  sectious.      Tlic  letter  ;i  after  :i  section  niiiiibiM-  directs  atten- 
tion  to   the  footnotes  of   that  section.  J 

RESTRAINTS  ON  ALIENATION— Continued. 

trust  remainder  indestructible  are  valid,  is  indefonsiMe: 
.such  a  holding  has  hern  made  in  Massachusetts  and  Illi- 
nois         739 

the  position  of  the  court  in  the  above  cases  is  inconsistent 
with  decisions  already  made  and  adhered  to,  and  con- 
trary to  the  weight  of  authority 740 

it  is  contrary   to  public  policy 741 

construction — what  words  are  sufficient  to  create  restraints  on 
alienation  or  a  so-called  spendthrift  trust : 

introductory     742 

Bennett   v.    Bennett 743 

Wagner    v.    Wagner 744 

Wallace  v.   Foxwell 745 

O  'Hare  v.  Johnston 746 

Hopkinson  v.  Swaim  and  Newcomb  v.  Masters 747 

conclusion     748 

RESULTING  ESTATES: 

always  in   fee    465 

by  way  of  use 58 

REVERSIONS: 

under  the  feudal  land  law 24,     31 

possibilities  of  reverter  are 283 

by   way   of   use 71 

vested  and  indefeasible 90 

vested,  but  uncertain  ever  to  take  effect  in  possession  and  defeas- 
ible— e.  g.,  a  reversion  pending  the  vesting  of  a  contingent  re- 
mainder           91 

vested,  but  subject  to  be  defeated  by  events  haiipening  after  tlie 

reversion  came   into   possession 92 

examples  of  reversions 303 

reversions  are  indestructible  by  any  rule  of  law  defeating  intent 

and    alienable 304 

a  difficulty   of  construction    305 

whether  after  the  creation  by  devise  of  a  freehold  followed  by  con- 
tingent  interests  a   residuary   gift   results   in  the  creation  of   a 

reversion  or  a  remainder 306 

jurisdiction  of  equity  to  set  aside  transfers  of 369-373 

attornment  no  longer  necessary  for  transfer 379 

descent   of,   from   whom    traced 380-382 

adverse    possession    against 383-397 

REVERTER,    POSSIBILITIES    OF:       {sw    Pos.sii;ilitie.s    of    Re- 
verter. ) 

925 


INDEX 

[References  are  to  sections.     The  letter  )i  after  a  section  number  directs  atten- 
tion  to   tlie  footnotes  of  that  section.  ] 

EIGHTS  OF  ENTRY: 

inalienability   of    47 

RIGHTS  OF  ENTRY  FOR  CONDITION  BROKEN: 

under   feudal   land   law 23 

estates  ■nhieh  may  be  subject  to  a  condition  subsequent: 

fee    simple    210 

mortgages     217 

terms  for  years   218 

concerning  the  existence  and  character  of  the  conditions: 
conditions  created  by  act  of  the  parties: 

what  words  are  effective  to  create  a  right  of  entry  for  con- 
dition   broken    219 

effect  of  a  re-entry  clause 219 

where  the  conveyance  is  for  certain  express  purposes, 
or  upon  a  motive  expressed,  or  upon  a  certain  con- 
sideration, or  ' '  upon  the  express  agreement, ' '  or 
"provided,   however,    the    grantee    shall    do"    thus 

and  so,  and  there  is  no  re-entry  clause 220 

cases  where  a  grantee  is  to  support  the  grantor  for 

the  remainder  of  his  life  or  pay  him  an  annuity.  .   221 
cases  where  words  of  condition  are  used,  but  there  is 

no   re-entry    clause 222 

the  primary  meaning  of  the  words  of  condition .  .   222 
how  far  resort  may  be  had  to  circumstances  sur- 
rounding  the   making   of   the   deed   to   impose 
upon   words   of   condition   alone   the   effect   of 

creating  a  covenant  only 223 

introductory    223 

a    strong   circumstance   that    a   condition   is 

created     224 

Post  V.   Weil 225 

Drueeker    v.    McLaughlin 226 

breach  of  condition  created  by  act  of  the  parties 227 

conditions  created  by  operation  of  law: 

upon  the  conveyance  of  a  fee  simple 228 

in  general   228 

mortgages    229 

diflSculty  in  the  rule  that  when  the  debt  is  barred 

the  mortgagee  has  no  right  to  possession....   229 
view  that  the  mortgagee  has  a  base  or  determin- 
able fee  230 

view  that  the  mortgagee's  interest  after  default 

subject  to  a  condition  subsequent 231 

barring  of  the  debt  is  simply  an  equitable  defence 
to  the  mortgagee 's  legal  title 232 

926 


INDEX 

[  UefercnccH  uro  to  sections.     Tlio  letter  n  iifler  a  Hectlon  uuiiilx-r  directH  atten- 
tion  to   the   footnotcH  of   tiiat   section.  ] 

RIGHTS  OF  ENTRY  FOR  CONDITION   BROKEN— Continued. 

in  case  of  leaseholds 233 

implied  condition  that  a  tenant  shall  not  repudiate  the 
tenancy  and  claim  to  hold  against  the  landlord...   233 

•    by  Acts  of  1865  and  1873 234 

prior   to    1865    no    ground   of    forfeiture    in    the 

absence  of  express  condition 234 

introductory    234 

on  principle    235 

not  altered  by  any  statute  down  to  1865.  .  .  .   236 
sec.  2  of  .the  Act  of  1865  afterwards  appearing 

as  sec.  9  of  the  Act  of  1873 237 

sec.  8  of  the  Act  of  1873 238 

whether  these  acts  have  any  retroactive  effect...   239 
who  may  take  advantage  of  a  breach  of  a  condition  subsequent  and 
who  take  subject  to  the  condition: 

when  attached  to  a  fee  simple 240 

when  attached  to  an  estate  for  life  or  years 241 

who  take  subject  to  the  condition 242 

effect  of  the  breach  of  a  condition  subsequent  and  mode  of  per- 
fecting a  forfeiture: 

estate  voidable,  not  void 243 

mode  of  perfecting  a  forfeiture 244 

of  freehold  estates    244 

of  estates  less  than  freehold 245 

the  common  law  method  of  forfeiture 245 

effect    of    Illinois    statutes    upon    the    common    law- 
method    of    forfeiture 246 

in  case  of  default  in  payment  of  rent 246 

Act   of    1827 246 

sec.  2  of  the  Act  of  1865,  appearing  as  sec. 

9  of  the  Act  of   1873 247 

sec.  4  of  the  Act  of  1865 248. 

sec.  8  of  the  Act  of  1873 249 

how    far    has    a    forfeiture    by    a    common 
law   demand   for    rent    been   abolished   by 

the  Acts  of  1827,  1865  and  1873 250 

for  cause  other  than  default  in  the  payment  of 

rent     251 

sec.  2  of  the  Act  of  1865,  appearing  after- 
wards as  sec.  9  of  the  Act  of  1873 251 

how  demand  may  be  made  or  notice  served 252 

retroactive  effect  of  the  Acts  of  1827,  1865  and 

1873    253 

927 


INDEX 

[  Keferences  are  to  sections.     The  letter  )i  after  a  section  niiniher  directs  ntteii- 
tion   to   tbe  footnotes  of  that  section.  J 

RIGHTS  OF  ENTRY  FOR  CONDITION  BROKEN— Continued. 

method  of  perfecting  a   forfeiture  as  altered  l>y  the 

agreement   of   the   parties 254 

provisions  for  the  benefit  of  the  landlord 254 

provisions  for  the  protection  of  the  tenant 255 

remedy  in  case  of  forfeiture  duly  perfected: 

by  ejectment  or  forcible  detainer  suit 256 

actual  entry  upon  the  land 257 

action  of  forcible  entry  and  detainer  for  2)Ossession  by  the 

one   put   out 257 

introductory    257 

where  the  entry  is  forcible 258 

before  1872    258 

since  1872   259 

where  the  entry  is  peaceable 260 

what  entry  is  peaceable  and  what  forcible 261 

how  far  may  the  one  put  out  sue  in  trespass  q.  c.  f.,  assault 

and  battery,  and  d.  b.  a 262 

three    possible    views 262 

the   Illinois   cases 263 

first    indications 263 

Reeder  v.  Purdy 264 

its    real    scope 264 

subsequent  cases:     Fort  Dearborn  Lodge  v. 

Klein    265 

the  ground  of  the  rule  laid  down  in  Reeder 

v.  Purdy   266 

distinction  between  forcible  and  peaceable  entry  267 

the  vice  of  Reeder  v.  Purdy 268 

'              the  virtue  of  Fort  Dearborn  Lodge  v.  Klein  269 

some   further   questions 270 

view  of  the  Appellate  Court  in  the  first  district.  .  271 

before  the   Klein  case 271 

since  the  Klein  case 272 

in  trespass  q.  c.  f 272 

Judge  Gary  's  view 272 

sustained  by  other  judges 273 

contrary    to    the    rule    of    the 

Supreme   Court 274 

in   trespass  for  assault  and  battery  and   de 

honis  asportatis    275 

defence  of  leave  and  license 276 

how  far  equity  will  enforce  a  forfeiture 277 

relief  against  forfeiture: 

at  law   278 

several  methods  of  relief 278 

928 


INDEX 

[Keferenoes  are  to  «''-tions      Tho  letter  „  after  a  section  number  dlrerts  atten- 
tlon   to   the  footnotes  of   that  section.] 

RIGHTS  OF  ENTRY  FOR  CONDITION  BROKEN-Continued. 

license    2^^ 

^t^'", y.''.'.'.'.'.'.'.'.   280 

estoppel   2g^ 

i°  equity   "  '  ' ^^^ 

right  of  entry  for  condition  broken  distinguished  from  a  possibility 
of  reverter— rights  of  the  dedicator  and  abutting  owner  on  a 
statutory  dedication: 

distinction  between  a  right  of  entry  for  condition  broken  and 

a  possibility  of  reverter 283 

the  interest  of  the  dedicator  upon  a  statutory  dedication'.'^   284 

what   sort   is   it 284 

on    principle     284 

on  authority  28" 

how  does  it  arise 2«6 

rights  of  abutting  owners  upon  vacation  of  a  statutory  dedica- 
tion      „„„ 

287 

in  the  absence  of  statute 9^^ 

the  Acts  of  1851,  1865  and  1874 ^  .... V   288 

effect  and  constitutionality  of  these  acts "   289 

the  wider  and  narrower  meaning  of  these  acts 289 

these  acts  only  operative  in  their  narrower  meaning, 
because  in  their  wider  meaning  they  would  be  un- 
constitutional and  unjust 290 

are    these    acts    in    their    wider    meaning    un.-onstitu-  " 

tional   or   unjust 29i 

a  difficulty  about  opening  this  question 291 

such  acts  arc  neither  unjust  to  the  dedicator  nor 

contrary  to  public  policy 292 

their   constitutionality    293 

retroactive  effect  of  these  acts 294 

when  their  narrower  meaning  is  adopted 294 

upon  their   wider  meaning 295 

application  of  these  statutes  in  their  narrower  meaning  to 
the  case  of  vacations  of  streets  in  canal  trustees '  sub- 
divisions      ggg 

introductory    ^„^ 

power  of  canal  commissioners  and  canal  trustees  to 

dedicate    streets    097 

upon  such  dedication  the  fee  passes,  leaving  a  right  to  " 

enter  in  the  dedicator  in  case  of  vacation 298 

upon  the  vacation  of  a  canal  subdivision  the  fee  in  the  " 
street  should  go  to  the  abutting  owners  099 

whether  subject  to  Rule  against  Perpetuities "  '   66" 

when  condition  illegal  or  impossible 750  75'"> 

construction  of  condition  in  a  deed  of  dedication!  ..............2831 

Kales  Put.  Int.— 59  q^jq 


INDEX 

[  Keferences  arc  to  soctious.      The  letter  n  after  a  section  inuiilnM-  dirpcts  atten- 
tion  to   tile   footnotes  of   that  section.] 

SEAL: 

necessary  to  a  covenant  to  stand  seized 63,  456 

is  it  necessary  to  a  bargain  and  sale 60,  456 

effect  of  recitals  in  a  deed  under 62,  456 

SEISIN: 

defined  in  relation  to  estates 10 

freehold  estates  11 

fee    simple 11 

fee  subject  to  a  condition  subsequent 12 

fee  simple  determinable  or  base  fee 13 

fee  tail    14 

introductory    14 

before  the  Statute  De  Donis 15 

origin  of  the  estate  tail  under  the  Statute  De  Donis.  .  16 
the  struggle  to  make  the  estate  tail  alienable  in  fee 

simple    17 

the  further  effort  to  secure  an  inalienable  estate  tail  18 

modern  legislation    19 

estates  for  life    20 

estates  less  than  freehold   21 

joint    ownership    22 

of  future  interests  after  a  particular  estate  of  freehold 30 

in  relation  to  conveyance   38-48 

SEISIN,  LIVERY  OF : 

mode  of  conveyance j .  . .  .  41,  451 

essential  feature  of  feudal  system  of  land  law 41,  451 

necessity  for  done  av>ay  with  by  statute  of  uses 59-64,  452 

how  far  a  valid  form  of  conveyance  in  Illinois 453 

SEPARABLE  LIMITATIONS: 

Rule  against  Perpetuities   685 

SHELLEY'S  CASE,  RULE  IN: 

origin  and  history  of  the  rule 34-37 

when  interests  created  by  way  of  use 81 

applied  to  equitable  interests 89 

does  not  apply  to  personal  property Ill 

in  general: 

the  Rule  in  force  in  Illinois  stated 412 

where   the   life    estate    and   remainder    differ    in   quality — one 

being  legal  and  the  other  equitable — the  Rule  does  not  apply  413 
where  the  remainder  is  not  to  "heirs"  but  to  "children"  the 

Rule  does  not  apply 414 

where  the  grant  or  devise  is  "to  A  and  his  heirs"  the  Rule 

has   no  application .  415 

930 


INDEX 

[  Iteferences  are  to  sections.     The  letter  n  alter  a  wection  inmiljcr  direi-ts  atten- 
tion  to  the  footnotes  of  that  Bcction. ) 

SHP]LLEY'S  CASPJ,  RULE  IN— Continued. 

it  does  not,  however,  prevent  the  application  of  the  Kuie  that 
other    estates    or    interests    are    inserted    between    the    life 

estate   and   the   remainder  to  heirs 416 

the  Eule  applies  though  the  life  tenant  takes  a  part  interest 
in  the  estate  for  life  and  a  remainder  in  the  whole,  or  the 
entire  interest  for  life  and  a  part  interest  in  the  remainder  417 
where  the  limitations  are  to  A  for  life,  remainder  "to  the  heirs 
of  the  body  "  of  A : 

there   have   been   dicta  and   decisions  that   the  Rule  does   not 

apply  to  such  limitations 418 

there  are  three  grounds  for  insisting  that  the  Rule  does  not 
apply  where  the  remainder  is  .to  the  "heirs  of  the  body" 

of  the  life  tenant 419 

the  recent  cases,  however,  hold  that  the  Rule  does  apply  where 
the  remainder  is  to  "the  heirs  of  the  body"  of  the  life 

tenant    420 

whore  the  remainder  is  to  "heirs,"  or  "heirs  of  the  body,"  of 
the  life  tenant,  to  what  extent  can  "heirs,"  or  "heirs  of  the 
body"  be  construed  to  be  words  of  purchase  and  not  words 
of  limitation  and  the  application  of  the  Rule  thereby  be  avoided : 

conflicting  results  of  the  cases 421 

what  is  meant  by  '  *  heirs "  as  a  word  of  purchase  and  as  a 

word  of  limitation 422 

the  first  theory  of  the  application  of  the  Rule  is  that  it  applies 
only  when  * '  heirs  "  in  a  remainder  to  heirs  is  used  as  a  word 
of  limitation  embracing  the  whole  line  of  inheritable  suc- 
cession, and  that  it  does  not  and  cannot  apply  where 
"heirs"  in  a  remainder  is  used  as  a  word  of  purchase.  . . .  423 
the  second  theory  respecting  the  application  of  the  Rule  is 
that  it  applies  when  the  word  ' '  heirs ' '  in  the  remainder  is 

used  as  a  word  of  purchase 424 

neither  of  the  above  two  theories  is  supported  by  all  the  re- 
sults of  the  English  cases  which  are  now  recognized  as  law  425 
a  third  theory  which  will  reconcile  at  least  all  the  English  cases  426 
in  American  jurisdictions  the  situation  is  a])t  to  be  chaotic  in 

the   extreme    427 

the  cases  in  Illinois 428 

where  the  interests  are  equitable — executory  trusts: 

the  Rule  applies  where  the  limitations  are  equitable 429 

the  Rule  does  not  apply  where  the  trust  is  executory 430 

what   trusts   are   executory 431 

two  views  not  generally  adoj)ted 431 

the  generally  accepted  view 432 

suggestions   of   the   cases   in   aid   of   the    proljloin    of   con- 
struction        433 

931 


'  INDEX 

[References  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion to  tile  footnotes  of  that  section.] 

SHELLEY'S  CASE,  EULE  IN— Continued. 

the  Rule  does  not  apply  to  personal  property: 

conclusion    stated    434 

where  the  bequest  is  to  A  for  life  and  then  to  "A's  executors 
and  administrators "    435 

where  the  bequest  is  to  A  for  life  and  then  to  his  '  *  heirs " . .  436 

where  there  is  a  bequest  to  A  for  life  with  a  remainder  to  * '  the 
heirs  of  A 's  body "  437 

there  are  decisions  which  seem  to  hold  that  upon  a  bequest  to 
A  for  life  and  then  to  A's  heirs,  the  Rule  applies  and  A 
has  an  absolute  interest   438 

suppose  the  limitations  of  personal  property  are  included  in 
a  residuary  gift  of  real  and  personal  property  to  A  for 

life  and  then  to  A's  heirs 439 

method  of  operation  of  the  Rule: 

the  Rule  operates  in  no  manner  whatever  upon  the  estate  of 

freehold  in  A,  but  only  upon  the  remainder 440 

character  of  the  Rule: 

the  Rule  is  not  one  of  construction,  but  an  absolute  rule  of 
law  which  operates  to  defeat  the  intent  of  the  testator  or 
settlor    441 

SHIFTING  FUTURE  INTERESTS:     (see  Executory  Devises,  Fee 
Simple,  Fee  on  a  Fee  by  Deed,  Classes.) 

created  by  deed  or  will  are  conditional  limitations 301 

defined    26,  443 

cannot  be  created  by  livery  of  seisin 453 

void  under  the  feudal  system  of  conveyancing 26,  451 

by  way  of  use: 

valid  before  the  Statute  of  Uses 452 

after  the  statute  they  became  legal  estates 72,  452 

valid  by  way  of  use  or  by  will 72,  85,  453 

reason  why  allowed  under  the  Statute  of  Uses 458 

equitable,  valid    88,  472,  721 

by  deed: 

whether  valid: 

interest  in  the  question 443 

origin   of  the   question  lies   in   the   fact  that  the   Illinois 
authorities  are  divided: 

cases  in  support  of  the  validity  of  shifting  interests 

by  deed  444 

against  the  validity  of  shifting  interests  by  deed  445,  721 
contentions : 

of   the   cases   which   seem   to  hold   shifting  interests 
invalid : 

stated    446 

932 


INDEX 

[  Rpforonces  arc  to  soctiona.     Tho  letter  n  after  a  section  numlier  direrts  atten- 
tion  to  the  footnotes  of  that  section.  ] 

SHIFTING  FUTURE  INTERESTS— Continued. 

repugnancy    447,  721 

the  common  law  rule  that  a  fee  cannot  he  lim- 
ited after  a  fee 448 

of    cases   which    hold    the    shifting   interest    by    deed 

valid    449 

reasoning  of  both  lines  of  cases  valid  so  far  as  it  goes: 

general   view    450 

the  common  law  system  of  conveyancing 451 

development  under  the  Statute  of  Uses 452 

the  principles  of  the  common  law  and  of  the  system 
of  conveyancing  which  developed  under  the  Statute 
of  Uses  exist  side  by  side  as  part  of  the  law  of 

Illinois    today    453 

the  special  issue    454 

shifting  limitations  by  deed  may  be  supported  here  by 
force  of  the  Statute  of  Uses: 

conveyances  by  deed  in  Illinois  have  never  operated 

under  the  common  law 455 

conveyances  by   deed   in   Illinois   have   always   taken 

effect  under  the  Statute  of  Uses 456 

the  fact  that  our  deeds  in  Illinois  may  operate  under 
the  acts   of   1827   and   1872  cannot   interfere   with 
the  validity  of  shifting  interests  created  by  them.  .   457 
shifting  interests   by   deed  may  be  supported  in   Illinois 

under  the  acts  of  1827  and  1872 458 

the   tendency   to   hold   shifting   future   interests  by   deed 
invalid  is  reactionary: 

character  of  the  changes  in  the  law  of  conveyances.  .   459 

the  attitude  of  our  supreme  court 460 

the  weight  of  authority  in  this  state  is  in  favor   of  the 

validity  of  shifting  interests  by  deed 461,  462 

by  will,  whether  valid  (see  Executory  Devises)   467  et  seq. 

by  exercise  of  power 73,  468,  610 

indestructible  when  valid 483 

how  far  alienable 476  «,  479-481 

sub.iect  to  the  rule  against  perpetuities 662 

SOCAGE:      (see  Tenure.) 

SPECIFIC  PERFORMANCE:     (see  Equity.) 

SPENDTHRIFT  TRUSTS:     (see  Restraint  on  Alienation.) 

validity   of     730,  731 

if  valid,  then  postponed  enjoyment  of  absolute  equitable  interests 

valid    732 

the  converse  does  not  necessarily  follow 738 

933 


INDEX 

[  Keferences  arp  to  sections.     The  letter  ii  after  a  section  nuiul)cr  directs  :ttteu- 
tion   to  the  footnotes  of   that  section.  ] 

SPOUSE: 

whether  surviving,  included  in  gift  to  heirs  at  law 573-574 

SPRINGING  FUTURE  INTERESTS: 

defined   26,  33,  442 

contingent  future  interests  after  terms  for  years  are 33,  307 

validity  of: 

under  feudal  system  of  conveyancing 26,  33,  451,  452 

after  the  Statute  of  Uses 72,  452 

when  created  by  deed : 

equitable  are  valid    88,  472 

legal    ♦. 463-466 

when  created  by  will : 

equitable  valid 88,  472 

legal  valid    85,  467-471 

(see  Executory  Devises.) 

result  from  the  exercise  of  powers 73,  468,  610 

indestructible    483 

who  entitled  to  intermediate  income  in  case  of 207-209 

subject  to  rule  against  perpetuities 113,  662 

transfer   of    479-481 

whether  vested  or  executory 476  n,  482 

ST  ABE  DECISIS: 

as  applied  to  constitutional  questions 291  n 

STATE: 

right  of,  on  dedication  by  canal  commissioners  or  trustees 299 

STATUTES:     (see    Constitutional   Law,    Construction    of    Stat- 
utes.) 
English : 

5  Rich.  II,  ch.  7   (Forcible  Entry  and  Detainer) 266,  270 

13  Ed.  I,  c.  1   (De  Donis) 15,  195,  402  n,  409  n 

18  Ed.  I,  c.  1   (Quia  Emptores) 7,  13,  230,  283,  286 

8  Hen.  VI  (Forcible  Entry  and  Detainer) 258 

1  Rich.  Ill,  c.   1    (Uses) 50 

4  Hen.  VII    (Incidents   of   Wardship) 50 

4  Hen.  VII,  c.  24  (Fines) 17 

21  Hen.  VIII,  ch.  4   (Survival  of  Powers) 619 

27  Hen.  VIII,  ch.  10  (Statute  of  Uses) 53,  307,  452,  456,  610 

27  Hen.  VIII,  ch.  16   (Statute  of  Enrollments) 60,  456 

32  Hen.  VIII,  ch.  1   (Statute  of  Wills)  84,  307,  325,  452,  467,  610 
32  Hon.  VIII,  ch.  34    (Covenants  and   Conditions   in  Leases) 
241 ,  379 

934 


INDEX 

[  KoferenfOH  arc  to  s«*ctioDR.     Tlio  li>tt<T  n  iiflcr  a  Hection  number  (liroit«  iitteu- 
tion   to   thf?  footnotes   of   that  section.] 

STATUTES — Continued. 

;!2   Hen.   VIII,  c.    I'.ti    (Fines) 17 

£1  Jac.  I    (Forcible  Entry  and   Detainer) 238 

12  Car.  II,  ch.  24  (Abolition  of  Military  Tenures) 8,  460 

29  Car.  II,  ch.  3   (Statute  of  Frauds) ."52.1 

4  Anne,  ch.  16,  §  9    (Attornment) .'179 

10  and  11  Wm.  Ill,  ch.  16  (Rights  of  Posthumous  Child) :!26 

39  and  40  Geo.  Ill,  c.  98   (Statute  on  Accumulation,  Thcllus- 
son  Act)    701 

1  Wm.  IV,  ch.  46   (Illusory  Apijointmcnts) 614 

7  Wm.  IV  and  1  Vic,  c.  26   (Wills  Act)  : 

sec.  3   (Contingent  Interests  Devisable) 325 

see.  27   (What  Words  Exercise  a  Power) 641 

sec.  29  (Meaning  of  ' '  Die  without  Issue ") 544 

sec.  30   (Estate  which  a   Trustee  Takes) 187 

8  and  9  Vic.,  ch.  106   (Real  Property  Act)  : 

sec.  8   (Contingent    Remainders    Indestructible) 106 

31  Vict.,  e.  4   (Sales  of  Reversions) 370 

37  and  38  Vic,  c  37   (Nonexclusive  Powers) 61.' 

40  and   41   Vic,  ch.   33    (Contingent    Remainders    Indestruct- 
ible)         106 

Arkansas: 

Sandels  &  Hill,  Digest  of  Stat.    (1894),  p.  253,  ch.  29,  sec 

700    (Entails)     402,  403,  409 

Colorado : 

B.  S.   1877,  ch.   18,  sec.  6;   Mills  Ann.   Stats.,   vol.   1,  p.  584, 

sec.  432    (1891)    (Entails)    402,  403,  409 

Illinois: 

adopted  prior  to  Revised  Statutes  of  1874  and  not  appearing 
therein : 

acts  relating  to  the  Illinois  and  Michigan  canal  and  the 
power  of  the  canal  commissioners  and  trustees  to  dedi- 
cate street,  etc 297-299 

R.  S.  1827,  p.  230;  R.  S.  1833,  p.  311;  R.  S.  1839,  p.  313; 
R.  S.  1845,  ch.  43,  p.  256  (Forcible  Entry  and  De- 
tainer)  258,  266 

Laws  1865,  p.  108,  sec.  4  (Landlord  and  Tenant) ..  .248,  253 

Laws  1851,  p.  112   (Vacation  of  Streets) 288,287-299 

Laws  1865,  p.  130  (Vacation  of  Streets) 288,  287-299 

appearing  in  Revised  Statutes  of  1874: 
ch.  3   (Administration  of  Estates)  : 

sec.  37   (Survival  of  Power  to  Administrator,  w. 

w.   a.)     fi21 

sec.   97    (Exercise  of   Power;    Survival   of  Power 

to   Executor)    618-620 

chap.  4,  sec  5   (Adoption  Act) •')85 

935 


INDEX 

[  Keferences  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to   the  footnotes  of   that  section.] 

STATUTES— Continued. 

chap.  22,  sec.  49   (Creditors'   BiUs) 316,  731 

chap.  28,  see.  1  (Common  Law) 453,  619 

chap.  30   (Conveyances)  : 

see.   1    (Conveyance  by  Deed  Valid) 

307,  379  7!.,  457,  458,  464,  476 

see.  2  (Statute  of  Uses  of  Rich.  Ill) 457 

sec.   3    (Statute  of  Uses) 453 

sec,   5    (Joint   Tenancy) 210,  315 

see.  6  (Entails). 293,  318,  402,  403,  409,  469,  565,  716 

sec.   9    (Warranty   Deed) 457,  458 

sec.  10  (Statutory  Form  of  Quit  Claim  Deed)  .  .  . 

307,  457,  458,  480,  481 

sec.  13  (Words  Sufficient  to  Create  a  Fee  Simple) 

156    et   seq. 

effect  of,  on  Rule  in  Wild's  Case 561-562 

sec.  14   (Eights  of  Posthumous  Child) 326 

sec.  3   (Recording  Act) 397 

sec.  34   (Suspension  of  Right  to  Exercise  Power 

by  Foreign  Executors) 613 

chap.  32   (Corporations),  sec.  26   (Foreign) 613 

chap.  39  (Descent) : 

sec.  1    (Rules  of) 381-382,  409 

sec.  11  (Death  of  Devisee,  being  a  child,  etc.,  of 

testator)     534,  598 

chap.  57  (Forcible  Entry  and  Detainer) 259 

chap.   76,  sec.  1    (Joint   Interests) 210-215 

chap.  77   (Sale  on  Execution),  sees.  3  and  10 

308,    309,  327 

chap.  80    (Landlord  and  Tenant)  : 

see.  4   (One-half  Year's  Rent  in  Arrear)  .  .  .  .236,  246 

sec.  8  (Demand  for  Rent) 238,  239,  249,  250,  253 

sec.  9   (Notice  to  Quit) .  .237,  239,  247,  250,  251,  253 
sees.  10  and  11   (Service  of  Demand  or  Notice) .   252 
sec.  14  (Remedies  Extended  in  Favor  of  the  Gran- 
tee,   etc.)     241,  379 

chap.    83    (Limitations) 232 

sec.  1-10   (Adverse  Possession  against  Reversion- 
ers and  Remaindermen) 383  et  seq. 

sec.    11    (Mortgages) 232 

chap.   109    (Plats.) 228,  285-286,  287-289,  292 

Chap.  145   (Vacation  of  Streets) 288,  287-299 

chap.  148  (Wills),  sec.  1  (What  may  be  Devised)...   325 
adopted  since  the  Revised  Statutes  of  1874: 

Laws  1879,  p.  211  (Power  of  sale  in  mortgages  and  trust 
deeds   invalid)     610  n 

936 


INDEX 

[Keferpnce»are  to  sections.     Tbe  letter  n  after  a  section  number  clirectH  atten- 
tion to  tbe  footnotes  of  that  section.  ] 

STATUTES— Continued. 

Laws  1887,  p.  144,  and  Laws  1889,  p.  99  (Foreign  corpo- 
rations having  power  to  act  as  executors) 613 

Laws  1907,  p.   1    (Statute  on  Accumulations — Thellusson 

Act)     701 

Indiana: 

Adoption  Act   584  e«  scq. 

Kentucky: 

Statutes  (1903),  see.  2360  (Restraints  on  Alienation) 737 

Maine : 

R.  S.  (1841),  ch.  91,  sec.  10;  Rev.  Stat.  (1871),  ch.  73,  sec.  5 

(Contingent  Remainders)    106 

Massachusetts : 

R.  S.  (1836),  ch.  104;  Gen'I  Stats.  (1860),  ch.  137;  Pub. 
Stats.  (1882),  ch.  126,  sec.  15,  ch.  175;  Rev.  Laws  (1902), 
ch.    136,    sec.    15,    ch.    181    (Forcible    Entry    and    Detainer 

Statutes)     259 

R.   S.   1836,  ch.   59,  sec.   7;    Rev.   Laws    (1902),  p.   1268,  sec. 

8    (Contingent    Remainders   Act) 106 

Laws  1780-1791,  p.  124,  act  of  Mar.  9,  1784  (Descent) 409  /i 

Adoption  Act 584  et  seq. 

Missouri : 

R.  S.  1825,  act  on  conveyances,  sec.  4;  R.  S.  1835,  act  on  con- 
veyances, sec.  5;  R.  S.  1845,  act  on  conveyances,  sec.  5; 
R.  S.  1855,  ch.  22,  sec.  5;  R.  S.  1866,  ch.  108,  sec.  4;  Wag- 
ner's Mo.  Stat.  1870,  p.  1351,  §4;  R,  S.  1879,  p.  675, 
§  3941;  R.  S.  1899,  vol.  1,  §  4592  (Statutes  on  Entails)  .... 

402,  403,  409 

New  Jersey :  ' 

Rev.  Stats.  (1820),  p.  299,  sees.  10  and  11;  Rev.  Stats.  1821, 
p.  744,  sec.  2;  Elmer's  Digest,  p.  130,  sec.  6;  Stat.  1874, 
p.  341,  sec.  11;  Nixon's  Digest,  1709-1855,  p.  196,  sec.  11; 
Gen'I  Stats.   (1709-1895),  vol.  2,  p.  1195,  sec.  11   (Statutes 

on   Entails)     402 

New  York : 

R.  S.,  part  2,  sec.  1^  tit.  2,  art.  i,  §32,  p.  725  (On  Contin- 
gent Remainders  and  Gifts  Over  on  Intestacy) 357,  723 

Pennsylvania : 

Session  Laws  of  1832-3,  p.  315   (Descent) 409  h 

Rhode  Island: 

Adoption  Act   584  et  scq. 

South  Carolina: 

1  Rev.  Stats.    (1893),  ch.  66;    Code  of  Laws   (1902),  vol.  1, 

§  2465   (Contingent  Remainders) 106 

Texas : 

Battis'  Am.  Civ.  Stat.  (1897)  §626  (Contingent  Remainders)    106 
937 


INDEX 

[  Kfferences  are  to  soi'tions.     The  letter  n  after  ii  scftion  number  directs  atten- 
tion  to  the  footnotes  of  that  section.] 

STATUTES— Continued. 
Vermont : 

G.  L.  (1862),  eh.  64,  sec.  1,  p.  446;  V.  S.  (1894),  ch.  105,  sec. 
2201,  p.  426   (Statutes  ou  Eutails) 402,  403,  409 

STATUTORY  ESTATES: 

in  place  of  estate  tail    (see  Fee  Tail)  : 

STREETS  AND  ALLEYS:     (see  Abutting  Owner,  Dedication.) 

STRICT  SETTLEMENT: 

description   of 18 

SUBLETTING: 

conditions    against,    valid 254,  715 

SUBSTITUTIONAL  GIFTS :    305,  506 

SUIT  IN  CHANCERY: 

Tvhcn  holder  of  future  interest  would  not  be  made  party  to 400 

SURRENDER : 

by  tenant    254 

SURVIVOR : 

construed  ' '  other  " : 

the  typical  case  where  "survivor"  is  construed  "other"....   60^2 

suppose  in  the  typical  case  given  the  ultimate  gift  over  on 
the  death  of  all  the  tenants  for  life  without  leaving  issue 
be   eliminated 603 

suppose,  while  leaving  the  original  gifts  to  individuals  for 
life  then  to  their  issue,  the  gift  over  be  to  the  survivor 
absolutely  and  not  merely  to  the  survivor  for  life  and  then 
to  the  survivor 's  issue 604 

suppose  the  first  gift  to  A  and  B  is  absolute  (instead  of  being 
for  their  lives  with  remainder  to  their  issue),  with  a  gift 
over  if  either  die  without  leaving  issue,  to  the  survivor. . . .   605 

suppose  the  limitations  are  to  sons  absolutely  at  twenty-one, 
and  to  daughters  for  life,  and  then  to  their  issue,  but  if 
either  sons  or  daughters  die  before  the  period  of  distribu- 
tion without  issue,  then  to  the  survivors 606 

suppose  all  the  shares  are  "settled"  on  daughters,  as  in  the 
typical  case,  and  suppose  one  daughter  dies  without  leaving 
issue  and  then  her  issue  all  die;  subsequently  another 
daughter  dies  without  issue;  do  the  representatives  of  the 
issue  of  the  first  daughter  take  a  share  of  the  interest  of 

the  daught€r  dying  without  issue 607 

gift  to    , 336,  343 

938 


INDEX 

[Keferences  are  to  scctionB.     Tlie  letti-r  n  nftf-r  a  section  number  directs  atten- 
tion   to   the   footnott'H   of    that   Mectiou.  ] 

SURVIVORSHIP : 

contingency     that     remainderman     survive     the     life    tenant     (see 

Vested  Remainders)  : 
contingency  that   legatee  survive   the  period   of   distribution    (we 

Legacies,  Vesting  or) : 

implication  of  a  contingency  of,  from  gift  over 345  et  seq. 

period  to  which  survivorship  is  referred  in  gifts  over  to  survivors. 528  )i 

TAIL,  ESTATE:     (see  Fee  Tajl.) 

TENANCY: 

at  suflferanee 21,  233  n 

at  will   21 

TENANTS  IN  COMMON: 

implication  of  cross  remainders  among 22,  214,  600,  601 

TENURE  AND  ITS  INCIDENTS: 

the  feudal  system  of  tenures 1,  451 

military   tenures 2 

necessary    services 2 

incidents     3 

socage  tenures   4 

kinds     4 

services  and   incidents 5 

Frankalmoigne  tenure   6 

effect  of  the  Statute  of  Quia  Emptores 7 

effect  of  the  Statute  of  Charles  II 8 

tenure  in  the  United  States 9 

TERMS    FOR    YEARS:     (see    Chattels    Real,    Conditions,    For- 
feiture, Landlord  and  Tenant,  Notice  to  Quit,  Rent.) 

origin  of 21,  70,  235 

why   personal    property 235 

may  be  subject  to  a  condition  subsequent 213 

subject  to  implied  condition  that  tenant   shall   not  repudiate  the 

tenancy  and  claim  against  the  lessor 233 

subject  to  statutory  forfeiture  for  breach  of  covenants  or  stipu- 
lations     234-239 

who  may  take  advantage  of  a  breach  of  condition  attached  to.  .   241 
mode  of  perfecting  forfeiture: 

for  non-payment  of  rent 246-250,  252,  253 

for  cause  other  than  non-payment  of  rent 251,  252,  253 

as  altered  by  the  agreement  of  the  parties 254,  255 

election  necessary  to  perfect  forfeiture  of 278 

demand  for  rent,  how  far  necessary  to  perfect  forfeiture.  ..  .   278 

939 


INDEX 

[References  are  to  sections.     The  letter  «  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of  that  section.  ] 

TERMS   FOR   YEARS— Continued. 

forfeiture  upon  alienation  of,  valid 715 

restraints   on  alienation  of 730-731 

concurrent  leases 241 

covenants   for  renewal 752  n 

covenant  against  assignment  of 277,  279 

passes  to  executor  or  administrator 235 

transfer  by  bargain  and  sale  without  entry 452 

no   remainder   after 61 

not  too  remote,  therefore,  though  the  term  be  for  1,000  years  654 
contingent  future  interest  after,  validity  of 31-33,  80,  307,  452,  465 

THELLUSSON  ACT:     (see  Accumulations.) 

TOREENS  LAW:    459 

TORTIOUS    CONVEYANCE : 46 

TRANSFER: 

of  right  of  entry  for  condition  broken 285,  293 

(see  Entry,  Right  of,  for  Condition  Broken.) 

of  contingent  remainders:      (see  Contingent  Remainders.) 

of  dedicator's  right  after  a  statutory  dedication 285,  287,  293 

of  executory  devises  (see  Executory  Devises) 479,  481 

heir's  expectancy  may  be  transferred 374 

of  remainders:      (see  Remainders.) 
of  reversions:      (see  Reversions.) 

a  waiver  of  a  cause  of  forfeiture 280 

of  possibility  'of  reverter:     (see  Possibility  of  Reverter.) 
of  springing  and  shifting  interests:     (see  Springing  Interests, 
Shifting  Interests.) 

TRESPASS: 

how  far  may  one  put  out  of  possession  by  one  having  the  right 

to  possession  sue  in 262-276 

(see  Forfeiture.) 

plea  of  liberum  tenementum: 

form  at  common  law 262 

form  under  Illinois  Statute' of  Forcible   Entry   and  Detainer 

265,  274 

to  chattels: 

defense   of   right   of  possession 270 

TRUST  DEED  BY  WAY   OF  MORTGAGE: 

power  to  appoint  new  trustee  is  valid 444 

Shifting  interest  to  successor  in  trust  valid 444 

power  of  sale  in 610  n 

940 


INDEX 

[KeferenccH  are  to  sectiona.     The  letter  n  after  a  Hection  uumber  directs  atten- 
tion   to   the   footnotes  of   tliat  section.] 

TRUSTEE:      (see  TitusTS.) 

proper   investments  by 492-493 

power  to  appoint  new  trustee 444 

new  trustee  appointed  to  exercise  power 621,  624 

power  of  sale  and  lease  in 643-646 

survival  of  power  of  sale  to  new  trustee 624  et  seq. 

power   of   court  of  equity  to   break  in   on   trusts  and   give   power 

of  sale  to 647 

new,  substitution  of  by  conveyance  to  uses 452 

canal  trustees:     (see  Canal  Commissioners  and  Trustees.; 

to  preserve  contingent  remainders 78 

joint   interests    in 212 

estate  which  trustee  takes: 

introductory 183 

testamentary  trusts    184 

cases  where  there  are  no  explicit  words  of  devise  to  the 

trustee    184 

cases   w'here   there   are   explicit   words   of   devise   to    the 

trustee    185 

effect  of  R.  S.  1874,  Ch.  30,  Sec.  13 185 

where  real  estate  is  devised  to  trustees  and  an  estate 

for  the  life  of  the  beneficiary  is  expressly  indicated  186 
where  real  estate  is  devised  to  trustees,  although  with 
words  of  inheritance,  or  where  such  words  are  sup- 
plied in  effect  by  R.  S.  1874,  Ch.  30,  Sec,  13,  prima 
facie  the  trustees  take  only  so  much  of  the  legal 

estate  as  the  purposes  of  the  trust  require 187 

a  fortiori,  where  no  words  of  inheritance  are  used 
and  no  statute  like  R.  S.  1874,  Ch.  30,  Sec.  13, 
exists,   the   trustee   takes   only  such  estate   as   the 

purposes  of   the  trust   require 188 

where  there  are  words  of  devise  to  the  trustee  and  the 
trustee  is  given  power  to  sell  and  convey  the  fee 
and  is  directed  to  wind  up  the  trusts  by  making 
an  actual  division  among  the  beneficiaries  and  con- 
veyances to  them,  the  trustee  takes  the  fee 189 

where  there  are  words  of  devise  to  the  trustee  and 
he  is  to  make  conveyances  upon  the  termination  of 

•  the  trusts,  but  has  no  power  of  sale 190 

where  there  are  words  of  devise  to  the  trustee  and 
he  is  given  power  to  sell  but  not  directed  to  con- 
vey to  the  beneficiaries  at  the  termination  of  the 

trusts    191 

where  there  are  words  of  devise  to  the  trustee  and 
power  to  make  leases,  but  no  power  to  sell  the  fee 

941 


INDEX 

[  Ki'ferencos  are  to  sections.     Tlie  letter  n  after  a  section  number  directs  atten- 
tion  to   tile   footnotes   of   tliat   section.] 

TRUSTEE— Continued. 

and  no  direction  to  convey  to  the  beneficiaries  at 

the  termination  of  the   trusts 192 

where  the  trusteeship  is  created  by  a  conveyance  inter  vivos. .   193 

TRUSTS: 

origin  of,  in  uses  which  the  statute  did  not  execute 68 

origin  and  reappearance  of  trusts  of  land 87 

equitable   estates   in   land 88 

the  Rule  in  Shelley 's  Case  applied  to  equitable  interests  in  land .  .      89 

dry  trust  executed  by  Statute  of   Uses 67,  69 

of  personal  property: 

future    interests    in 112 

springing  and   shifting  equitable   interests   valid 472 

requirement   that   trusts   shall   remain   indestructible   for   too   long 

a    time,    void 658-660 

for  jierpetual  care   of  cemetery   lot. 660 

to  pay  debts  and  legacies: 

application   of  Rule   against   Perpetuities 666-676 

spendthrift:      (see  Restraints  on  Alienation.) 

restraints  on  alienation  attached  to  equitable  fees 739-741 

executory — Rule  in  Shelley's  Case  does  not  apply 430  et  seq. 

constructive  trust  for  payment  of  debts  and  legacies  supplied  the 

loss  of  a  power  which  did  not  survive 622-623 

whether    constructive    trust    supplies   want    of    gift    in    default   of 

appointment    637 

indestructibility   of   absolute   equitable   interest:      (see   Postponed 

Enjoyment)     732-738 

real  estate,  whether  void  for  remoteness 658-661 

for  charitable  purposes — whether  void  for  remoteness 697 

whether  cestui 's  interest  subject  to  garnishment 731 

powers  in  trust:      (see  Powers.) 

UNCERTAINTY: 

when  gift  to  charity  fails  for 697  n 

gift  over  on  intestacy  of  personal  property  void  for 722 

gift  over  of  personal  property  after  a  life  interest  with  full  power 

in  life  tenant  to  dispose  or  use  up  principal  not  void  for 

486,   486  n,   722 

UNMARRIED : 

meaning  of    552  n 

USES: 

before   the   statute 262 

uses  defined 49 

origin  of   uses 50 

942 


INDEX 

[Keferences  are  to  sections.     Tho  k'ttiT  n  iiftcr  a  section  nunilx-r  directs  atten- 
tion  to  the  footnotes  of  that  section.  ] 

USES — Continued. 

enforcement  of  the  use  by  the  cestui 51 

po.sition  of  the  feoffee  and  cestui  que  use  at  law  as  distinguished 

from  their  position  in  the  chancery 52 

statute   of    53,  249 

after    the    statute -.452,  45:},  458,  464 

raised  on  transmutation  of  possession: 

defined     54 

transmutation  of  possession  and  an  express  declaration  of 

the   use 55 

transmutation  of  possession  and  the  payment  of  a  con- 
sideration          56 

transmutation  of  possession,  declaration  of  the  use  by  one 

and  payment  of  the  consideration  Ijv  another .37 

resulting   uses    58 

after  the  statute: 

raised  without  transmutation  of  possession: 

defined    59 

the  bargain  and  sale  and  Statute  of  Enrollments 60 

the   Statute   of   Enrollments   avoided   by   the   "lease   and 

release "    61 

no  particular  form  of  words  is  necessary  to  make  a  bar- 
gain and   sale 62 

covenants  to  stand  seized 63 

summary     64 

after  the  statute: 

operation  of  the  statute 65 

uses  which  the  statute  did  not  execute: 

suppose  A  seized  in  tail  or  for  life  were  directed  to  hold 

to  the  use  of  one  in  fee 66 

uses  which  the  statute  did  not  execute 67 

status  of  uses  which  the  statute  did  not  execute 68 

whether  or  not  the  statute  executes  a  use  is  to  be  deter- 
mined finally  at  the  time  the  use  is  created 69 

after  the  statute: 

estates  and  limitations  by  way  of  use: 

estates  of  freehold  and  less  than  freehold  in  possession     70 

future    interests     71 

those   permitted    by    the    feudal    land    law    could   be 

created  by  way  of  use 71 

some    not    permitted   by    the    feudal    land    law    were 

valid  when  created  by  way  of  use 72 

springing  and  shifting  uses 72 

powers 73 

limitations  to  classes  by  way  of  use "4 

943 


INDEX 

[Keferences  are  to  sections.     The  letter  ;i  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of  that  section.] 

USES — Continued. 

conveyance   creating   estates  will   take   effect   in 

any  way  possible 75 

basis   for  new   freedom   in   creating  estates  and 

future  interests    76 

contingent  remainders  by  way  of  use 77 

the  rule  of  destructibility  applies 77 

trustees  to  preserve  contingent  remainders 78 

the  feudal  distinction  between  vested  and  con- 
tingent remainders  continued  to  be  important     79 
contingent  future  interests  by  way  of  use  after  terms 

for   years 80 

the  Kule  in  Shelley  's  Case 81 

alienability  of  future  interests  created  by  way  of  use ...     82 

use  after  a  use 67 

use  on  a  use 67 

a  dry  trust 67 

with  active  duties,  a  trust 67,  69 

summary  of  changes  wrought  by  statute  of 83 

conveyancing,  under   the   Statute   of  Uses 452 

(see  also:  Fee  Simple,  Fee  on  a  Fee,  Shifting  and  Springing 
Future  Interests,  Eemainders,  Keversions,  Contingent  Eb- 
mainders.) 

VACATION  OF  DEDICATION:      (see  Dedication.) 

rights    of    dedicator    on 284-285 

rights  of  abutting  owners  on 287-299 

of  streets  in  canal  trustees'  subdivision,  effect  of .296-299 

(see  Canal  Commissioners  and  Trustees.) 

VEST,    VESTED,    VESTING: 

meaning  of,  in  Rule  against  Perpetuities 117-118,  654 

when  springing  and  shifting  future  interests  vest 482 

meaning  of  as  applied  to  remainders  which  are  uncertain  ever  to 

take  effect  because  of  divesting  clause. 328 

rule  that  favors  construction  of  vested  interests 329 

sense   in   which   vest   is   used   when   question   is   as   to   vesting   of 

legacies    495,   496 

when   equitable   interests   in   land   or   in  a   mixed   residue    of   real 

and  personal  property  are  involved 528 

vesting  of  legacies:      (see  Legacies.) 

future  interests  in  personal  property,  when  vested 489,  490 

vested  interests  not  subject  to  Rule  against  Perpetuities 118,  654 

yet   in   one  case   a  vested  interest   in   a  member   of   a   class 
may  fail  for  remoteness  with  the  gift  to  the  whole  class.  .   684 
determination  of  classes  does  not  depend  upon  whether  members 

of  the  class  take  vested  interests 653 

944 


INDEX 

[References  are  to  sections.     Tlie  letter  n  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of   that   section. ) 

VEST,  VESTED,  VESTING— Continued. 

application   of    the   Rule   against   Perpetuities   to   vested   gifts  to 
classes   678-680,  684 

VESTED  REMAINDERS: 

distinction   between   vested   and   contingent 29,  79,  96 

examples  and  characteristics  of 308 

subject  to  be  divested 327,  328 

problems  of  construction  in  determining  whether  a  remainder  is 
vested  or  contingent : 

introductory    329 

limitations  to  A  for  life,  remainder  to  B  "after  the  death 
of    A "    330 

where  the  limitations  arc  to  A  for  life  and  "  if  B  overlive  A, ' ' 
then  to  B  for  life 331 

remainders  in  default  of  appointment 332 

where  the  limitations  are  by  devise  to  A  for  life,  remainder 
to  B  (an  individual  as  distinguished  from  a  class),  "if" 
or  "when"  he  shall  attain  a  given  age,  or  "at"  a  given 
age,  with  a  gift  over  in  the  event  of  his  dying  under  that 
age 333 

suppose  the  life  estate  be  omitted  and  limitations  are  directly 
to  A  "  if , "  or  "  when ' '  he  shall  attain  twenty-one,  with 
a  gift  over  in  case  he  dies  under  that  age 334 

where  the  limitations  are  by  devise  to  A  for  life,  then  to  the 
children  of  A  (a  class),  "at,"  "when,"  or  "if"  they 
attain  twenty-one,  with  a  gift  over  in  default  of  children 
who    attain    twenty-one 335 

where  the  remainder  is  to  "the  children  of  A  who  shall  attain 
twenty-one"  or  "to  such  children  of  A  as  shall  attain 
twenty-one,"  with  a  gift  over  in  default  of  children  attain- 
ing that  age  336 

limitations  to  A  for  life,  remainder  to  B  "if  he  survive  A; 
if  he  does  not, "  to  C 337 

limitations  to  A  for  life,  remainder  to  the  children  of  A  "who 
survive,"  and  if  any  die  before  A,  to  their  children,  if  any; 
if  not,  then  over 338 

where  the  limitations  are  to  "A  for  life,  remainder  to  the 
children  of  A  who  survive  A,  and  to  the  children  of  any  who 
do  not  survive  A, ' '  without  any  further  gift  over 339 

where  the  limitations  are  to  A  for  life,  remainder  to  B  "if 
he  survive  A,"  and  if  he  does  not  and  dies  without  leaving 
issue,  over  t-o  C 340 

where  the  limitations  are  to  A  for  life,  remainder  to  "his 
children  surviving  him, ' '  with  a  gift  over  if  A  die  '  *  with- 
out issue  surviving  him "    341 

K«Ies  >>!!.  Int.— 60  Qd'i 


INDEX 

[References  are  to  sections.     The  letter  n  after  a  section  number  directs  atten- 
tion  to  the  footnotes  of  that  section.] 

VESTED  EEMAINDERS— Continued. 

where  the  limitations  are  to  A  for  life,  remainder  "in  case  A 
dies  leaving  any  cliildren  surviving,"  to  them,  the  issue  of 
any  child  taking  their  deceased  parent's  share;  but  should 
A  survive  all  the  children  (they  having  died  without  issue), 

then  to  A  342 

remainder  to  A,  B  and  C,  "or  the  survivor  or  survivors"  of 

them     343 

limitations  to  A  and  B  for  life  and  in  case  of  the  death  of 

either,  to  the  other  344 

cases  where  a  remainder  has  been  limited  without  any  explicit 
condition  precedent  in  form  that  the  remainderman  survive 
the  life  tenant,  but  where  there  has  been  a  gift  or  gifts  over 

in  case  the  remainderman  dies  before  the  life  tenant 345 

bearing  of  the  results  noted  in  the  preceding  sections  upon 

the  problem  of  construction  now  presented 345 

where  the  remainder  is  to  named  individuals  with  a  gift 

over  if  any  die  before  the  life  tenant,  to  survivors.  .  .  .  346 
where  the  remainder  is  to  named  individuals  or  to  a  class, 
with  two  gifts  over — usually  one,  ' '  if  any  die  leaving 
children,  to  such  children,"  and  the  other,  "if  any  die 
without  children,  to  the  survivors,"  or  "if  all  die  with- 
out children,  to  A"  347 

where  the  remainder  is  to  named  individuals  (who  are 
adults),  or  to  a  class  (m  esse  and  adult),  with  a  single 
gift  over  if  any  die  without  leaving  children  or  issue,  to 

the   survivors    348 

where  the  remainder  is  to  the  unborn  children  of  the  life 
tenant  with  a  single  gift  over  if  the  life  tenant  dies 

without  leaving  children  or  issue  surviving 349 

where  the  remainder  is  to  named  persons  or  to  a  class, 
with  a  single  gift  over  if  any  die  before  the  life  tenant 

leaving  children,  then  to  those  children 350 

suppose  the  remainder  be  limited  ' '  to  the  life  tenant 's  children 
who  survive  the  life  tenant  and  in  case  any  die  leaving  chil- 
dren, to  such  children,"  is  the  ultimate  gift  over  also  con- 
tingent upon  the  grandchildren  surviving  the  life  tenant...  351 
suppose  there  is  first  a  contingent  remainder  to  the  life  tenant 's 
surviving  children  or  to  her  lineal  heirs  and  then  a  remainder 
is  limited  to  a  class  upon  the  life  tenant's  dying  without 
leaving  children  or  issue,  is  the  second  remainder  to  the  class 
also  contingent  upon  the  remainderman   surviving  the  life 

tenant    352 

effect  on  vesting  of  the  fact  that  the  remainder  is  limited  to  a 
class    353 

946 


INDEX 

r  Keferencos  an-  to  s.-.iiuns.     Tho  l.-ttcr  n  aft.-r  n  s.-.tiou  niiiiil..r  .lln-.  ts  att.-n- 
'  tlon   to  the   footnotes  of   that   section.) 

VESTED  REMAINDERS— Continued. 

effect  of  special   directions  that  the  remainder  is  to  "vest" 

or  "become  absolute"  on  the  death  of  the  life  tenant 354 

whether  a  future  interest  is  a  vested  remainder  subject  to  a 
charge,  or  a  springing  executory  interest  contingent  upon  the 
one  to  whom  it  is  limited  paying  a  sum  after  tlic  termination 

of  the  life  estate •  •   '^^■^ 

cases  dealing  with  whether  there  is  a  condition  prece.lent  in 
form  that  the  remainderman  survive  the  life  tenant  where 
personal  property   is   involved,   are   not   authoritative  where 

real  estate  is  involved   ^^^ 

New  York  statutory  definition  of  vested  and  contingent  remainders: 
the  New  York  statutory   distinction  between  vested  and  con- 
tingent remainders    ■*^' 

the  Illinois  cases  regularly  and  without  exception  assume  the 
common  law  or  feudal  distinction  between  vested  and  con- 
tingent remainders  to  be  in  force  in  this  State  and  endeavor 
to   apply    it,   and   have   explicitly   rejected   the    New   York 

statutory    distinction "^^o 

cases  which  it  is  claimed  show  the  adoption  in  Illinois  of  the 
New  York  statutory  distinction  in  every  instance,  excepting 
one,  will  be  found  to  reach  a  proper  result  without  applying 
the  New  York  doctrine,  and  the  one  case  which  did  apply  the 
New  York  statutory  distinction,  and  another  purporting  to 

follow  it,  have  been  in  terms  overruled 359 

cases  dealing  with  the  statutory  remainder  created  by  the 

Statute  on  Entails 359 

Voris  V.  Sloan  ^^^ 

Smith  V.  West ^^^ 

Siddons   v.    Cockrell 362 

Kellett  v.  Shepard   363 

Burton  v.  Gagnon  

Boatman  v.  Boatman '*"•' 

Chapin  v.  Nott   ^^^ 

Ruddell  V.  Wren   ^^^ 

Orr  V.  Yates   ^^^ 

WAIVER : 

as  a  defense  to  forfeiture 280 

WARRANTY : 

as  a  method  of  barring  estates  tail ^' 

passing  of  title  by 6^i-i~i 

WASTE: 

right  of  holder  of  future  interest  to  prevent 399,  46o,  494 

947 


INDEX 

[  References  are  to  sections.     Tbe  letter  n  after  a  section  number  directs  atten- 
tion to  the  footnotes  of  that  section.  ] 

WILLS:       (see    Devise,    Interpretation    of    Writings,    Executory 
De%'ise.) 

origin  under  the  Statute  of  Wills  of  Henry  VIII 84 

limitation  of  estates  by  devise 85 

devise  as  a  mode  of  alienation 86 

WORDS   AND   PHRASES:      (see    Heirs,   Issue,   Children,   Grand- 
children, Survivors.) 

limitations  to  "A  or  his  heirs ' ' : 

where  there  is  no  preceding  estate 170 

in  a  conveyance  inter  vivos 170 

by  way  of  devise 171 

where  there  is  a  preceding  life  or  other  estate 172 

limitations  in  a  conveyance  inter  vivos 172 

by   way  of   devise    173 

meaning  of  "or  his  heirs"   where  the   words  introduce 

a  substitutionary  gift 174 

where  there  is  a  preceding  life  estate  with  gifts  over  on  con- 
tingencies, with  an  ultimate  gift  over  to  "A  or  his  heirs".  .    175 

where  the  ultimate  gift  is  to  the  grantor  '  'or  his  heirs" 176 

"after  the  death  of  A": 

effect  of    162,  163,  529 

distributive   construction   of 206 

where  it  commences  the  limitation  of  a  remainder 330 

"in  case  of  A's  death" 530 

"  if  B  outlive  A " 331 

WRITINGS: 

interpretation  of:     (see  Interpretation  op  Writings.) 


948 


KALES 
ESTATES 

And 

FUTURE  INTERESTS 
—  1920  — 

A  Treatise  on 

ESTATES  and  FUTURE 

INTERESTS  in  ILLINOIS 

With 
An  Historical  Introduction 

and  an 

Exposition  on  the 

Interpretation  of  Writings, 

More  Especially  Wills 

By  Albert  Martin  Kales 

of  the  Chicago  Bar 

A  treatise  on  the  law^  of  estates  and 
future  interests  and  illegal  conditions 
and  restraints  embracing  all  the  Illinois 
cases  down  to  and  including  Vol.  287 
of  the  Illinois  Supreme  Court  Reports, 
and  citing  some  700  cases  outside  of 
Illinois  from  other  states,  and  some 
800  leading  English  cases. 

All  the  cases  in  Illinois  and  elsewhere 
have  been  carefully  classified  and  di- 
gested to  make  the  volume  of  the 
greatest  possible  value  to  practitioners 
and  judges  in  Illinois,  and  of  use  gen- 
erally to  practitioners  and  judges  in  the 
country  at  large  where  the  common 
law  rules  prevail. 

The  introduction  to  the  law  of  estates 
and  future  interests  is  of  particular 
value  to  students  in  the  first  year 
course  on  property. 


One  Volume 


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MLES  ESTATES  and  FUTURE  INTERESTS 


By  ALBERT  MARTIN  K 


SECOND 

And 

ENLARGED  EDITION 


SOME  IMPORTi 


19  2  0  This  work  is  a  revision  and  enlargement  ol 

1 905.  It  embodies  the  results  of  the  author 
years,  as  well  as  his  unusual  experience  in  1 
with  the  most  important  subjects  treated  ir 
since  Gray's  Rule  Against  Perpetuities  has  an  American  Law  Book  appeare 
writer  of  law  and  as  a  leading  practitioner  at  the  bar  as  well.  The  followinj 
tion  and  exposition  regarding  the  interpretation  of  wills. 

A.  Difficulties  of  construction  in   determining   when    a    fee   simple   is   created 

and  when  a  life  estate,  including  the  difficulty  of  determining  what  legal 
estate  a  trustee  takes.     94. sections. 

B.  Rights  of  abutting  owners  upon  the  vacation  of  a  statutory  dedication.      I  7 

sections.  * 

C.  R^ht  of  landlord  to  regain  possession  by  force.      20  sections    (authorities 

at  large  considered). 

D.  The  distinction  between  vested  and   contingent   remainders   and   the   legal 

attributes  of  each  ( 1  00  sections  are  devoted  to  this.  The  authorities  at 
large,  English  and  American,  are  fully  collected  and  digested.  The 
handling  of  this  subject  is  the  great  contribution  of  this  book  to  the 
law  of  the  subject.  It  is  a  complete  revision  and  enlargement  of  the 
earlier  work. ) 

EL      The  Rule  in  Shelley's  Case.      (An  exhaustive  treatment  with  full  citation  of 
authorities  at  large,   English  and   American.)       30  sections. 

F.  The  operation  and   effect  of  our  Statute  on   Entails.       10   sections.       (This 

treats  the  authorities  in  all  the  states  having  a  statute  similar  to  Illinois, 
viz.:  Arkansas,  Colorado,  Missouri  and  Vermont.) 

G.  In  defense  of  the  proposition  that  shifting  interests  (fees  on  fees)  by  deed 

are  valid  in  Illinois.     20  sections. 


SECOND 

And 

ENLARGED  EDITION 
1  920 


The  treatment  of  the  foregoing  problems  hi 
authorities  at  large  and  the  history  of  Re? 
became  necessary  to  indicate  the  correct  res 
interest  are  some  parts  of  this  volume,  th< 
nent  American  Law  Reviews  and  in  a  lead 


d  ILLEGAL  CONDITIONS  and  RESTRAINTS 

LES  of  the  Chicago  Bar 


^T  FEATURES 


SECOND 

And 

ENLARGED  EDITION 

e  author's  Future  Interests  published  in  19  2  0 

aching  and  writing  during  the  past  fifteen 

handling  of  many  litigated  cases  dealing 
le  volume  during  the  same  period.     Not 

i)y  one  who  has  enjoyed   to   the   same   extent   success   as   a   teacher   and 
•e  the  most  notable  subjects  of  the  work  apart  from  the  historical  introduc- 


H.  Executory  devises  and  validity  of  gifts  over  after  an  absolute  interest  with 
full  power  of  disposal  in  the  first  taker.     9  sections. 

I.       Life  interests  in  personal  property.      9  sections. 

J.  The  subject  of  when  legacies  are  vested  and  when  contingent.  (34  sec- 
tions,  with  copious  citation  of  authorities  at  large.) 

K.  Construction  of  gifts  over  upon  the  death  of  a  previous  taker  without  chil- 
dren, or  without  issue,  or  without  heirs.     24  sections. 

L.  Construction  of  limitations  to  classes,  including  the  meaning  of  issue  in  gifts 
to  issue  and  the  question  of  how^  far  adopted  children  may  be  included 
in  gifts  to  heirs,  issue  or  children.     43  sections. 

M.  When  powers  of  sale  of  real  estate  will  be  construed  to  exist  in  life  ten- 
ants, trustees  and  executors,     9  sections. 

N.  Rule  against  Perpetuities  and  limitations  to  classes.  7  sections.  (On  this 
subject  the  author  had  the  benefit  of  a  valuable  correspondence  with 
Professor  Gray.  The  American  authorities  at  large,  so  far  as  they  deal 
with  the  more  difficult  points  discussed,  have  been  collected.) 

O.  In  support  of  the  validity  of  postponed  enjoyment  clauses  attached  to  ab- 
solute equitable  interests — taking  issue  with  Professor  Gray  in  his  Re- 
straints on  Alienation.  7  sections.  (Here  also  the  authorities  at  large, 
English  and  American,  are  dealt  with.) 


aeen  coupled  with  a  consideration  of  the 
-*roperty   Law   whenever    such    a    course 

upon  a  disputed  point.  Of  such  general 
hey  have  found  places  in  several  promi- 

English  Law  Review. 


SECOND 

And 

ENLARGED  EDITION 
1  920 


Estates  and  Future  Interests  in  Illinois 

By  ALBERT  MARTIN  KALES 

BOOK  I. 

INTRODUCTION  TO  THE  LAW  OF   ESTATES   AND   FUTURE   INTERESTS 

Chapter  I.  The  Feudal   Land  Law. 

Chapter  11.  Land    Law   Under   the   Statute  of  Uses. 

Chapter  111.  Wills  and  Trusts  of   Land. 

Chapter  IV.  The    Later    History    of    Reversions,   Remainders  and   the  Rule  of  Destruc- 

tibility   of   Contingent   Remainders. 

Chapter  V.  Estates  and   Future    Interests   in   Personal  Property. 

Chapter  VI.  The    Rule    Against    Perpetuities. 

BOOK  II. 

INTERPRETATION   OF  WRITINGS  —  MORE  ESPECIALLY  WILLS. 
Chapter  VII,       1  he   Theory    of   Legal    Interpretation    and    Availability    of    Extrinsic    Evi- 

dence. 
Chapter         Vlll.      Suggestions    Concerning    the    Practice    of    the   Art    of    Interpretation. 

BOOK  III. 

ESTATES. 
Chapter  IX.       Fee   Simple. 

Chapter  X.       Fee   Tail. 

Chapter  XI.      Estates    for   Life. 

Chapter  XII.      Joint  Interests. 

BOOK  IV. 

FUTURE  INTERESTS. 

Chapter  XIII.       Rights    of   Entry    for   Conditions  Broken. 

Chapter         XIV.      Possibilities  of  Reverter. 

Chapter  XV.      Reversions   and   Remainders. 

Chapter  XVI.  The  Statutory  Remainder  Created  by  the  Statute  on  Entails  and  Remain- 
ders Limited  After  an  Estate  Tail. 

Chapter        XVII.       Rule   in   Shelley's   Case. 

Chapter      XVIII.      Springing    and    Shifting    Future   Interests. 

Chapter         XIX.       Future   Interests  in   Personal   Property. 

Chapter  XX.      Vesting  of  Legacies. 

Chapter  XXI.  Gifts  Over  Upon  the  "Death"  of  a  Previous  Taker  Simpliciter  or  "With- 
out   Children,"    or    "Without    Issue,"    or    "Without    Heirs." 

Chapter       XXII.      Limitations   to   Classes. 

Chapter      XXIII.      Divesting   Contingenices   and    Conditions   Precedent    to    the   Taking   Effect 

of  Executory  Devises  and  Bequests — Acceleration. 

Chapter      XXIV.       Cross   Limitations. 

Chapter       XXV.       Powers. 

Chapter     XXVI.      Rule  Against  Perpetuities. 

BOOK  V. 

ILLEGAL  CONDITIONS  AND  RESTRAINTS   ON    ALIENATION. 
Chapter   XXVII.       Forfeiture   and   Restraints   ou   Alienation. 
Chapter  XXV'U.       Illegal    and    Impossible    Conditions. 


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